Eagle-Picher Mining & Smelting Co.

In the Matter of EAGLE-PICHER MINING & SMELTING COMPANY, A CORPORATION, and EAGLE-PICHER LEAD COMPANY, A CORPORATION, and INTERNATIONAL UNION OF MINE, MILL & SMELTER WORKERS, LOCALS Nos. 15, 17, 107, 108, AND 111 Case No. C-73.-Decided October 27, 1939 Lead and Zinc Mining and Smelting Industry-Interference, Restraint, and Coercion.: control of administration of, and financial and other support of, labor organization ; utilized by employer to break strike of outside union ; participation by employer representatives in affiliation of company-dominated organization with national organization ; use of violence against strikers ; responsibility of employer for actions of its supervisory officials ; employer ordered to withhold recognition from favored organization, pending Board certification , unless . similar recognition granted to organization opposed by employer-Discrimination: requiring membership in company-dominated and supported organization as condition to employment ; virtual closed-shop agree- ment -with. that organization; discharge of supervisory official for resisting employer pressure to force men in his department into favored labor organiza- tion ; burden upon respondent to disentangle the consequences for which it was chargeable from those from which it was immune ; charges of, not sustained as to certain persons-Contract: employer ordered to cease giving effect to virtual closed-shop contract with favored organization-Regular and Substantially Equivalent Employment: factors considered in determination of : comparison of wages, working conditions, regularity of employment, geographical considera- tions; statement of subsequent employer that employment was to be of an indefinite duration, as.,establishing ; found, as to certain employees ; employer nevertheless ordered to offer them employment-Strike: begun prior to ef- fective date of Act ; held current labor dispute on and after effective date of Act; strikers retain employee status-Employee Status: managerial or super- visory employee as an employee within the meaning of Section 2 (3) of the Act-Collective Bargaining : charges of refusal to, dismissed upon failure to prove majority in an appropriate unit-Reinstatement Ordered: of strikers discriminated .. against, and others discriminatorily discharged ; grounds for refusal of : compliance with an illegal condition , as ; violence, persons guilty of, as-Back Pay: lump sum ; proportionate distribution among those discrim- inated against. Mr. W. J. Avrutis, Mr.. Harry C. Duncan, Jr., and Mr. D. B. McCal/mont, Jr., for the Board. Mr. Harry W. Blair, of Washington, D. C., Mr. John ' C. 'Madded, of Kansas City, Mo., and Mr. H. C. Wallace, of Miami, Okla.., for'the respondents. Mr. Sylvan Bruner, of Pittsburg, Kans., and Mr. Louis N. Wolfe, of Joplin, Mo., for the International. 16 N. L. R. B., No. 71. 727 247383-40-vol. 16-47 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Louis Y. Wolfe, for John R. Sheppard. Mr. Richard Salant, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE ' Upon charges duly filed by Internatioil i l Union of Mine, Mill Sc Smelter Workers, Locals Nos. 15, 17, 107, 108, and 111, herein called the International, the National Labor Relations Board, herein called the Board, issued its complaint,' signed by Chairman - J. Warren Madden and members Edwin S. Smith and Donald Wakefield Smith, and dated November 8, 1937, against Eagle-Picher Mining & Smelting Company and Eagle-Picher Lead Company, herein collectively called the respondents, alleging that the respondents had engaged in and were engaging in unfair labor practices within the meaning' of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing were duly served upon the respondents, the International, and Tri-State Metal Mine & Smelter Workers Union, herein called the Tri-State Union. In respect to the unfair labor practices, the complaint alleged in substance : (1) for the first cause of complaint that although on May 8, 1935, the International represented a majority of the em- ployees of the respondents in an appropriate unit, the respondents on that date and at all times thereafter refused to bargain collec- tively with the International; (2) for, a second cause of 'complaint that subsequent to a strike called by the International, the respond'- ents on May 27, 1935, "intending to form and dominate a labor .organization, thereafter ,known as the Tri-State Metal Mine & Smelter Workers Union . . . entered into and formed a common plan or conspiracy," that ' thereafter the respondents formed and established, and assisted and supported financially' said Tri-State Union, and that since June 5, 1935, the respondents have. required as a condition of employment membership 'in the Tri-State Union and have refused to employ members of the International, thereby discriminating against certain named individuals; (3) for a third cause of complaint, that the respondents at various times subsequent I On charges duly filed , a complaint covering substantially the same issues had been filed against the respondents on May 23, 1936. Hearings were postponed after the respondents had brought a bill of injunction against the Board. This injunction was dissolved on May 27, 1937. Daniel M. Lyons, et al. v. The Eagle -Picher Lead Company, a corporation, and The Eagle-Picher Mining & Smelting Company, a corporation, 90 F. (2d ) 321 (C. C. A. 10th). EAGLE-PICHER 1ZINING & SMELTING COMPANY 729 to July 5, 1935, "employed and exercised and continued to employ and exercise violence and armed force against persons and the property of persons who were or are members of the International Union." On November 15, 1937, the respondents filed an answer which, as amended before and during the course of the hearing, denied most of the allegations of the complaint. It further alleged as-an affirm- ative defense that the members of the International had engaged in force and violence and that the Tri-State Union had been dissolved and was not at the time of the answer in existence, and further stated "respondents are informed and believe that since the dissolu- tion of said Tri-State Metal Mine & Smelter Workers, the A. F. of L. had formed a labor union of mine, mill, and smelter workers in this district, known as the Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers, and respondents are advised that they have no legal right to interfere with same." Pursuant to notice, a hearing was held in Joplin, Missouri, from December 6, 1937, to April 29, 1938, before William Ringer, the Trial Examiner duly designated.by the Board. The Board, the Interna- tional and the respondents were represented by counsel and partici- pated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing, on charges duly filed, the com- plaint was amended to add as a further cause the discharge of John R. Sheppard, acting director. of research for the Eagle-Picher Lead Company, hereinafter called the respondent Lead Company, for the reason that he had refused to force the respondents' employees work- ing under him, to - j oin the Tri-State Union. The respondents filed an answer to the amendment denying that they had engaged in the unfair labor practices as alleged. Further from time to time during the course of the hearing, the complaint was amended to add the names of various employees alleged to have been discriminatorily discharged to the list contained in the complaint. On motion of counsel for the Board other names of employees alleged to have been discriminatorily discharged were withdrawn and the complaint as to such employees was dismissed by the Trial Examiner without objection. Concerning the motions to add to the complaint names of employees alleged to have been discriminatorily discharged, the Trial Examiner either reserved decision or granted them. Testi- mony of added claimants as to whom decision was reserved was re- ceived, and the Board hereby grants the motion to add the names of such employees to the complaint. During the course of the hearing, counsel for the Board sought to establish that the Tri-State Union had not actually dissolved, and `730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that its purported successor, the Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers, herein called the Blue Card Union, was virtually identical with and a continuance of the Tri-State Union. The Trial Examiner reserved ruling on the issue of identity between these two unions, and the respondents filed an affidavit of surprise on the ground that the issue was not within the limits of the complaint. Subsequently, the Trial Examiner overruled the respondents' objection to the admission of evidence on this issue. 'The complaint alleges that "at no time . . . did the respondents 'disassociate themselves from and disestablish" the Tri-State Union and that at all times since July 1935 the respondents have required membership in said Union.2 In their answers and amended answers, the respondents,. as stated above, affirmatively alleged the dissolution .of the Tri-State Union and its replacement by the Blue Card Union. We hold that the pleadings raise, the issue of the continued exist- ence of the union alleged to be dominated and supported by the -respondents, and the ruling of the Trial Examiner, admitting evi- ' ','dence on' the continuance of the -Tri-State Union under the name of -the Blue Card Union, is hereby affirmed.8 At the close of the Board's case, and again at the conclusion of the -hearing, the Trial Examiner denied the respondents' motions to dis- miss the complaint. These rulings are hereby affirmed. During the -course of the hearing, the Trial Examiner made various rulings on -other motions and on objections to the admission of evidence. . We have reviewed the rulings of the Trial Examiner and find that no prejudicial' errors were- committed. The rulings are hereby affirmed. Counsel for the respondents, for the Board, and for the International argued orally before the Trial Examiner at the close of the hearing. The respondents alsp filed a factual brief relating to each employee alleged to have been discriminatorily discharged. Pursuant to an order issued by the Board directing the Trial Examiner to issue an Intermediate Report, the Trial Examiner, on August 31, 1938, filed his Intermediate Report, copies 'of which were duly served upon all the parties. The Trial Examiner found-that the respondents had engaged in and were engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the .complaint be dismissed in so far as it alleged that the respondents had •on May 8, 1935, locked out their employees, or that the respondents had refused to bargain collectively with the International Union, or that certain employees, including John R. Sheppard, had been dis- 2 The complaint did not allege any violation of Section 8 (2) of the Act. e Since the Trial Examiner ruled on the objection on December 9, 1937, and the hearing -continued until April 29, 1938, the respondents had full opportunity to meet the issues iraised. EAGLE-PICHEB MINING & SMELTING COMPANY 731 criminatorily discharged 'or discriminatorily refused reinstatement. The Trial Examiner's recommendation for the dismissal of the com- plaint in so far as it alleged discriminatory discharge or refusal to reinstate pertained in general to the following categories of em- ployees : (1) those employees who had been convicted by military court of participation in a riot; 4 (2) those employees who had been convicted or indicted for other violation of law; 5 (3) those employees. Who were engaged on May 8, 1935, the time of the strike, in occupa- tions Which at the conclusion of the strike had been abolished; 6 (4) those employees who either before or after the strike had filed suits or made claims against the respondents for compensation for lead poisoning, silicosis, or other disabilities; 7 (5) those employees who had stated at the hearing that they had been unwilling at all times to return to work with the respondents unless the respondents complied with certain conditions demanded by the International; 8 (6) those claimants who were not employees of either of the respondents on May 8, 1935, the date of the strike; 9 (7) those employees named in the complaint who did not testify at the hearing; 10 and (8) those 4 These employees were John H. Bankhead, Elmer Dean; James R. Hensley. Darrell L. Largent, Carl D. LaTurner, Walter R. Overstreet, Wesley M. Qualls, Ted Schasteen, William F. Sowder, William L. Webb, and Raymond Williams. 5 These employees were Jess Kitch, Darrell L. Largent, and William L. Webb. ° These employees are Harry C. Beyer, Tom W. Black, Roy Boyd, Paul M. Brooks, George. W. Clark, Roy A. Cottongin, J. C. Dodson, John E. Freeman, Henry T. Hamilton, James R. Hensley, Oliver H. Hiatt, Vivian C. Hiatt, Jess Kitch, Carl D. LaTurner, Ray McIntire,. William T. Mathiews, Charles T. Thoades, Lewis Alfred Rice, Clarence Rice, Byron War- mack, Harlan B. Waughtal, Dorsey J. Whitlow, Raymond Williams, James E. Wilson,. William Young, William Henry Cagle, Recie F. Jones, William Charles LaTurner, Earl E. Martin, Richard W. Murray, Eugene R. Overstreet, Arthur N. Puckett, Virgil Spiva, Ray- mond N. Spurlock, Floyd A. Williams, Paul Hollingsworth, Jay 0. Jones, John G. Warren,. Nick Bratz, H. E. Bridges, D. G. Creason, Lewis DeWitt, N. J. Petitt, James Orvis Bryant,. Guss Cooper, Luke A. Griffitt. Burton V. (Ben) Kearney, W. E. Bond, A. F. Bruce, Ray- mond F. Burgett, Clifford Doak, Fred Foster, W. S. Fulkerson, G. Marion Headley, Albert Otis Plummer, Robert M. Ransom, Harry Elmer Ridgway, Elmo A. Treece, and Ora Wil- liams. The Trial Examiner also did not recommend reinstatement and limited back pay to- a period ending June 30, 1936, In relation to the following employees who had been em- ployed at the Bendelari Mine, which was sold by the Eagle-Picher Mining & Smelting Com- pany on June 30, 1936: Elmer E. Browning, Archie Lee Bunch, Calvin Davis, Jake C. Emerson, Everett J. Faries, Henry L. Freeman, J. D. Hughes, John R. McCormick, W. C. Novak. Albert M. Rigg, Charles E. Van Kirk, William N. Van Treece, and P. L. White. 7 These employees were Orven E. Blinzler, Roy Bray, Elmer Dean, Orlay Dodd, Walter C. Jewell, Clarence R. Loflin, George W. White, Leroy Berry, Loman Brown, Pleas M. Dun- can, Oliver A. Hiatt, Jay 0. Jones, Jess Kitch, Carl LaTurner, William Thomas Mathiews, Clyde E. Schroeder, Clabe E. Brown, and James E. Webb. 8 These employees were John A. Basnett and Millow Ferguson. ° These employees were Leonard B. Anderson, Leroy G. Berry, Ernest K. Bogle, Clabe- Brown, Winth Jervis, Clayton Johnson, Manual F. Jones, Charles C. Owens, Joe A. Reece,. Tom Reece, Albert M. Rigg, Clyde E. Schroeder, Orville Stever, and Elmer A. Tinkler. 1° These employees were Laurel Ashworth. George M. Bankhead, Earl Bartlett, Tom Bogle; Basil Bradshaw, W. T. Brown. W. W. Brooks, Don Cassell, Jim Chatman, William Clark:. Raymond Connor, L. W. Countryman, Crabtree, Claib Crook, G. C. Dale, John Deverell, John P. Delson, C. 0. Emerson, J. W. Fitzgerald, Harvey Freeman, Thomas Freeman,. James A. Gorman, W. L. Hannon, Ralph Harlow, B. E. Hiatt, W. F. Hobbs, Z. T. Hobbs, Jack Hodson, Joe Hodson, R. D. Hollingsworth, Jesse Horton, Dan Huest, Loyal Henderson, Claude Jones, Frank Jones, Ray Jones, F. L. Jones, Charles C. Jones, Jack Labelle (La- baugh), Richard Lawyer, Ernest L. Lewis, George W. Lewis, Jess E. Lewis, Samuel L. Lipps, Hiram Little, Louis Luton, Floyd E. Mallatt, C. Martin, E. J. Mooney, Horace G. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who were not in good health and capable of working for the re- spondents at all times after May 8, 1935 . 11 The Trial Examiner recommended that the respondents cease and desist from their unfair labor practices ; reinstate with back pay certain employees ; give back pay without reinstatement to other employees ; cease and desist from encouraging membership in the Tri-State Union, the Blue Card Union, or any other labor organization; cease and desist from dis- couraging membership in the International Union; and post appro- priate notices , including a notification that a contract between the Blue Card Union and the respondents is null and void and of no legal effect whatsoever. Subsequently, the respondents and the International filed excep- tions to the Intermediate Report. Pursuant to notice served on the parties, a hearing for the purpose of oral argument was held on December 12, 1938, before the Board in Washington, D. C. The International was represented by counsel and participated in the argument. Counsel for the respondents appeared and requested that, owing to time limitations , the respondents be permitted to incorporate as their oral argument before the Board the oral argu- ment made and transcribed before the Trial Examiner following the hearing. This oral argument of the respondents ' counsel has been duly incorporated into the record and has been considered by the Board. Thereafter the International filed a brief in support of its exceptions. Counsel for John R. Sheppard also filed a- brief in sup- port of exceptions to the Trial Examiner 's recommendation that the fourth cause of complaint, alleging Sheppard's discriminatory discharge, be dismissed. The Board has considered the exceptions of the respondents and of the International to the Intermediate Report, and in so far as they are inconsistent with the findings , conclusions, and order set forth below finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. BUSINESS OF THE RESPONDENTS The Eagle-Picher Lead Company, herein called the Lead Company, is an Ohio corporation, incorporated in 1867, with principal offices Murphy, Dellos Neeley, M. O'Dell, L. D. Rice, Claude W. Rowland , Burl Russell ( Dead), R. B. Smith, W. R. Spencer , Clarence Stevenson, E. W. Thomure , Clarence Thomas, Truman Thomas, Floyd C. Titus, John Warren, Arthur E. Webb, Fred G. Winner, H. E..Wisdom, Davis Worthan, and R. Ira Young. It These employees were Otto Anderson , Leroy G. Berry, Elmer Belk, Loman H . Brown, Claude Dalton, Oliver R. Hiatt, Jay 0. Jones, Recie F. Jones, Clarence R. Login, William Thomas Mathiews , James M. Roper , William N . Van Treece, James E. Webb, and Floyd N. Wooleyer. The Trial Examiner also found that certain employees were incapacitated for limited periods between May 8, 1935, and the date of the hearing. EAGLE-PICHER MINING & SMELTING COMPANY 733 at Cincinnati, Ohio. ' Its capital stock was issued at a par value- of $18,555,400. The Lead Company is engaged in the mining of lead and zinc ores, the smelting and refining of lead and zinc, the manu- facture of products from lead and zinc, and lead and zinc byproducts, and the marketing of such products. The Eagle-Picher Mining & Smelting Company, herein called the Mining Company, a Delaware corporation, is a wholly owned sub- sidiary of the Lead Company and was incorporated in Delaware in 1930. It handles the principal mining and smelting. activities of the respondents. The Eagle-Picher Sales Company, not here in- volved, has since 1934 marketed the products of both the Lead Company and the Mining Company. It is a subsidiary of the Lead Company, and has offices in the principal cities in the United States. The Lead Company has manufacturing plants at Joplin, Missouri; Hillsboro, Illinois; Argo, Illinois; Chicago, Illinois; Cincinnati, Ohio ; Newark,' New Jersey ; and a smelting plant at East St. Louis, Illinois. The Mining Company owns, leases, and operates lead and zinc mines in the Tri-State District, consisting of southeastern Kan- sas, northeastern Oklahoma, and southwestern Missouri. These enterprises are involved in. the present proceeding. It operates a lead smelter at Galena, Kansas, a zinc smelter at' Henryetta, Okla- homa, and a Central Mill near Picher, Oklahoma, where lead and zinc ores are smelted and refined. The Mining Company also has oil and gas wells in Oklahoma; a mine in Arizona, which produces coal, silver, lead, and zinc; coal mines in Arkansas;' and barytes deposits in Missouri. The enterprises named in the last sentence are not here involved. For the fiscal year ending December 31, 1936, gross sales of the respondents totaled $20,883,413.50 of which $16,704,138.52 represented sales by the Lead Company, and $4,091,171.42 represented sales by the Mining Company and subsidiaries. . During the period between March 31 and October 1; 1937, the Mining Company produced' at its Central Mill near Commerce, Oklahoma, 8,300 tons of lead concentrates, all of which were shipped to points outside the State of Oklahoma. The major portion of this total was shipped to the Mining Company's smelter at Galena, Kan- sas. During the same period the Mining Company produced at its Central Mill approximately 55,000 tons of zinc concentrates, of which approximately 21,600 tons were shipped to destinations outside the State of Oklahoma. Of the 28,400 tons of zinc concentrates shipped from the mill to points within the State of Oklahoma, approximately 50 per cent were moved over the St. Louis & San Francisco Railway Company by way of Baxter Springs, Kansas.- In the same period the Mining Company shipped to its smelter at Galena, Kansas, from 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD points outside the State of Kansas, approximately 24,100 tons of lead, lead concentrates, and secondary lead-bearing materials. It produced at the Galena, Kansas, smelter approximately 28,900 tons of market- able commodities, of which approximately 20,900 tons -were shipped to the Lead Company at points outside the State of Kansas, while 3,700 tons were shipped to other purchasers outside the State of Kansas. During the same period the Mining Company shipped to its smelter at Henryetta, Oklahoma, from points outside the State of Oklahoma, approximately 3,100 tons of zinc, zinc concentrates, and secondary zinc-bearing materials. At its Henryetta smelter the Min- ing Company produced 14,700 tons of marketable commodities of which about 160 tons were shipped to the Lead Company outside the State of Oklahoma, and approximately 14,540 tons were shipped to other purchasers outside the State of Oklahoma. The Mining Com- pany's mills are the principal mills in the Tri-State area and mines owned by others in the area ship or otherwise deliver their ores and products to the Mining Company's mills. Crude ore is hauled to the Central Mill in Oklahoma from mines in Kansas and Missouri. The percentage of such ore so delivered to the Central Mill varies from day to day. Not less than 35 per cent of the ore milled at the Central Mill originated from points outside the State of Oklahoma during the period from March 1 to October 1, 1937. The Lead Company between March 31 and October 1, 1937, pro- duced at its Joplin, Missouri, smelter about 12,916 tons of com- modities, 11,447 tons of which were shipped to points outside of Missouri. The operations of the Mining Company and the Lead Company during said period from March 31, to October 1, 1937, are character- istic of each 6-month period of operations by said companies during the years 1938, 1936, and 1937. During these years there existed a written contract between the Mining Company and the St. Louis & San Francisco Railway Company whereby the Mining Company was given the right to, and did, operate trains on the tracks of the said railroad between Webb City, Missouri, and the Central Mill in Okla- homa for the purpose of transporting crude ore owned by the Mining Company.12 II. THE ORGANIZATIONS INVOLVED The International Union of Mine, Mill & Smelter Workers Locals Nos. 15, 17, 107, 108, and 111, are labor organizations affiliated with the Committee for Industrial Organization, herein called the C. I. O. 12 In Daniel M. Leona, et al. v. The Eagle-Picher Lead Company, et al., 90 F. (2d) 321 (C. C. A. 10th, 1937), the United States Circuit Court of Appeals for the Tenth Circuit held that the respondents here involved were engaged in interstate commerce. EAGLE-PICHER MINING & SMELTING COMPANY 735 In 1935 these locals were affiliated with the American Federation of Labor. They admit to membership all persons working in mines, mills, and smelters, who are not in executive positions. Foremen are admitted as associate members only. The jurisdiction of the locals corresponds roughly to various geographical areas in the Tri-State District. Their membership is not restricted to employees of the respondents, but includes persons employed by other mines, mills, and smelters in the Tri-State District. The Tri-State Mine, Mill & Smelter Workers Union is an unaf- filiated labor organization organized on or about May 27, 1935. It admits to membership all white males over 18 years of age who have previously worked in any capacity in the lead or zinc mines, mills, or smelters in the Tri-State District. The constitution of the Tri- State Union does not limit its members to non-executive employees. The Tri-State Union also admits to membership local merchants and other non-employees in the district. Since its inception, the Tri-State Union has been known as the Blue Card Union. The Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers is a labor organization organized in 1937.13 On April 24, 1937, the American Federation of Labor, herein called the A. F. of L., granted Federal union charters to various locals in the Tri-State area and on June 16, 1937, the Blue Card Union was officially organized as an A. F. of L. affiliate. It admits to membership only mine, mill, and smelter workers in the district. III. THE UNFAIR LABOR PRACTICES A. The respondents' managerial and administrative structure; powers to hire and fire; the respondents' responsibility for activities of supervisory employees Since in the course of events described below leading parts were played by certain of the respondents' employees for whose actions the respondents urge that they are not responsible, it is necessary at the outset to describe the respondents' administrative structure. The highest managerial officers of the respondent Lead Company and its wholly owned subsidiary, the respondent Mining Company, are sit- uated in Cincinnati, at the respondents' central business offices. Ex- cept indirectly, these individuals are not here involved. The respondents' chief executive officer in the Tri-State area is George Potter, vice president of the Mining Company and general manager of the mines. Although nominally connected only with the Mining Company, Potter was during the strike and at least until September 1935 in charge of the labor relations of both respondents. 13 The circumstances of its creation are described more fully below. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chief officer of the Lead Company in the Tri-State area was Leonard Vaughn, general manager of the respondent Lead Company's Joplin plant. Vaughn testified that he discussed labor matters with Potter: during the strike and that he also supervised labor relations at the Joplin plant during the period in question. Jointly, with Vaughn; Walter George was in charge of personnel at Joplin. Applicants for employment at Joplin are initially routed through George. G. C. (Clint) Niday was general superintendent of the Mining Company and in charge of the policies at the mines and the Central Mill. Ray- mond Hallows was general manager of the respondent Mining Com- pany's Galena smelter. He had power to hire employees at that plant.. Actual initial hiring at the Galena smelter was done by Joe Newby, its personnel manager and superintendent.' Assistant secretary of the Mining Company, in charge of conducting compensation litigation for both respondents, and personnel manager of the Mining Company's mines and Central Mill, was John Campbell, who had charge of the personnel records at the mines and smelters and has ultimate power over the issuance of rustling cards.14 He also supervises labor relations at the mines and Central Mill. The respondents apparently do not contend that the individuals named above are not executives or officers of the respondents. It is clear that these men guide the policies of the respondents in the Tri-State area and are in active charge of the respondents' enterprises there. We hold that the respondents are bound by the statements, conduct, and activities of these men. The respondents contend, however, that, only the men named above have any power over personnel and that no others have power to hire. This contention is based on the system of personnel management em- ployed by the respondents in' the Tri-State area. In general, the respondents claim that all candidates for work must first apply at the respective employment offices of the respondents, answer questions and submit to physical examinations. If the examinations are satisfactory, a rustling card 18 is issued to the applicant. Without a rustling card, the respondents contend that no applicant may work for them. It is evident that such is, in general, the system in force. Nevertheless, it is clear that it is not always followed with strict formality. Testimony of various employees establishes that superintendents, ground bosses and foremen do, on occasion, put men to work without a rustling card, and shortly thereafter send the worker to the office for a rustling card.1° 11 See immediately below for a description of the rustling card system. 11 Also known as hustling or work cards. 10 The ground boss may himself send the employee to the office with an order for a rustling card. Such an order does not appear to be anything more than a recommendation that a card be issued. EAGLE-PICHER MINING & SMELTING COMPANY 737 In any event, we find that the rustling-ca,rd system is not such that it deprives lesser supervisory employees in the respondents' official hierarchy of all power over hiring and discharging. Issuance of rus- tling cards at the offices, although ordinarily a condition precedent, is nevertheless merely a preliminary step, to obtaining employment. Campbell testified and we find that he or his office issued cards without first ascertaining whether a job was available, and that it was custom- ary to issue more rustling cards than the number of actual employees necessary.'? After the card is issued, other supervisory employees participate in personnel management by choosing candidates, by assign- ing work, by making recommendations and by discharging. We turn briefly to the testimony adduced in relation to this issue, and to the actual functioning of these individuals. Superintendents. Norton Ritter was superintendent of the Mining Company's South Side and Big John Mines. Simeon Clark was super- intendent in charge of the Bendelari mine as "assistant" to Niday. Walter Frudenberg was superintendent of the Mining Company's Central Mill. Clark testified that he had power to give employment' if there was a vacancy. Ritter testified that the employment of labor and supervision over labor problems at the South Side and Big John mines rested with Campbell in the first instance and thereafter with himself. Concerning Ritter's powers, the following colloquy ensued : Q. (by the respondent's counsel) : "Both before and after the strike, did you or anyone else have the right to go out and hire men? A. If they had a rustling card, we could." Frudenberg testified that once rustling cards were issued, he assigned men to work. He admitted on cross-examination, however, that "I have something to do with the hiring and the firing of men, but that has nothing to do with any employment cards," and that "If a prospective candidate came to me for a job and he had the require- ments to fill a certain job, I would send a recommendation into our office for an employment card." When questioned by Board's coun- sel concerning what he had "to do with the hiring and firing of men," Frudenberg replied "That answers it. I have the hiring and firing of men." Finally, Frudenberg testified that he had full powers to discharge without first consulting the office. We find that the respondents' superintendents have power to assign men to work, have power to participate in the hiring of men and 17 Leonard Vaughn and Walter George testified that the system differed at the Joplin plant, where only so many rustling cards were issued as jobs were available . George admitted , however, that he "might have asked the foreman if this man [I . e. an applicant] would be all right for this job ." The individual supervisory employees at Joplin are discussed below. 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have full power to discharge. We further find that their powers are such as to make the respondents responsible for their statements, con- duct and activities. Ground bosses. The chief working foreman of a mine is known as a ground boss. His immediate superior is the superintendent. The following are ground bosses of the respondent Mining Company : Newt Keithley, Southside mine; William DeWitt, Tulsa-Quapaw mine; 18 Joe Pruitt, Bendelari mine; 19 Oscar Bailey, Tom Brown and Grace B. mines; L. C. ("Rats") Marcus, Ohimo and LaSalle mines; and Ray O'Dell, Mary N. Beck mine. Mike Evans, who was himself an operator and had long been engaged in mining in the Tri-State area, testified that a ground boss generally had power to hire and discharge in the district. Clifford Doak, an employee of the respondent Mining Company, testified that DeWitt, his ground boss, had power to hire and discharge, and that when he was hired, .he had to get an order from his ground boss in order to get a rustling card. Mack Hanks, an employee of the respondent Mining Com- pany, testified that he had seen Newt Keithley, his ground boss, fire employees and in general give orders at the mine. John Warren testified that Oscar Bailey, his ground boss, put and refused to put men to work when they presented rustling cards, and gave orders. James Thompson and Raymond Burgett testified that after the strike, when they applied for work at the respondent Mining Com- pany's main office, they were directed first to obtain an order from their ground bosses. Oscar Bailey testified that as a ground boss he "assisted" in the hiring and discharging of men. We find that the respondent Mining Company's ground bosses have substantial powers to hire, discharge, assign and direct work, and are supervisory employees whose statements, activities , and conduct are binding upon said respondent. Foremen and other supervisory employees. The respondent Min- ing Company's foremen include "Os" Russell, shift foreman of the Jumbo furnaces at the Galena smelter with 12 or 14 men under him; 20 James Shaw, Jumbo furnace foreman at the Galena smelter; "Dave" Shaw, yard foreman at the Galena smelter with 15 to 30 men under him; Fred DeMier, foreman or superintendent of the flotation department at the Central Mill; Carl Juergens, shift foreman at the Central Mill; B. L. Geddes, superintendent of the white-lead depart- ment at the Galena Smelter; and James Sweet, Jumbo furnace fore- man at the Galena smelter. The respondents contend that these men Is DeWitt was ground boss at the time of the strike , and later became foreman and "cokey herder." 10 Pruitt died late in 1936 or early in 1937. "The Trial Examiner excluded certain conversations between employees and Russell or -other foremen and admitted others as original evidence only. Although we here observe the limitations placed upon such evidence, we believe that the rulings were erroneous. EAGLE-PICHER MINING & SMELTING COMPANY 739' have little or no authority. Campbell testified that shift foremen '21, and other foremen named above, have no power to hire employees. Subsequently, however, Campbell admitted that a shift foreman could "place him on his crew-that is, as to what work to do." He further admitted that every individual who had a rustling card did not necessarily have to go to the superintendent but could go direct to the foreman, who could forthwith put the man to work, and that he knew of no instances where a superintendent failed to dismiss an employee whom the shift foreman recommended for dismissal.22- Testimony other than Campbell's indicates that foremen have super visory powers of a substantial nature. The evidence shows that the- Mining Company, at least at the Galena smelter, employed " extras" who waited at the gate for employment. Whether or not they re- ceived employment each day depended on whether they were chosen by a foreman. Pleas Duncan, a Witness for the Board and a former acting foreman at the time of the strike, testified that he discharged men without consulting his superiors and on _ occasion hired men who had not yet obtained rustling cards. Raymond Hallows, a wit- ness for the respondents and manager of the Galena smelter, testified that "A foreman has the option of picking his own men." Although on direct examination, Frudenberg testified that he did not allow his foremen to assign men to work, on cross-examination he stated that an applicant had "to come and see" Frudenberg or "come recom- mended" by a foreman. Finally Joe Newby testified that a foreman "has his choice over the entire extra board" and further had power to decide whether to make an extra a permanent employee. A "cokey herder" holds a position at the mines somewhat analogous to foremen at the Central Mill and Galena smelter. He is the fore- man of the shovelers and supervises their work. The ground boss is his immediate superior. The evidence shows that a cokey herder is generally the person at the mine who informs miners that they are no longer needed.; that he can report a miner to the ground boss for unsatisfactory work; that he gives instructions to the men under him; and that on occasion he hires men with rustling cards without first consulting the ground boss. Foremen at the Lead Company's Joplin plant include Allen Best, head of the metal department with 30 men under him; Roy Wood, foreman in the Joplin plant after November 1, 1935; Fred Clearman, day foreman of the wool department; Alton Jones, in charge of the insulation department; and Foster Mays, foreman of the electrical department with 5 men under him. The respondents urge that be- cause of the difference in the hiring system at the Joplin plant, "Not all individuals named above are shift foremen. 2' Employees generally considered such foremen as "bosses " and so referred to them at the hearing. 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'special considerations apply. Vaughn testified that at Joplin, there is no "candidating" at the gate, that the foremen do not pick their men but notify the office of vacancies, whereupon Walter George hires the men. Nevertheless, the evidence shows that the foremen have substantial powers. George admitted that the rustling-card system limited the right of others than himself only in relation to hiring. George, as personnel manager, had little to do with lay-offs or dischtirges ; the other supervisory employees below him exercise the power to discharge and simply notify George of the fact after it is accomplished. Alton Jones testified that the chief function of a foreman at the Joplin plant was "constant supervision" over the par- ticular department in his charge. Moreover, Vaughn testified that foremen had power to recommend men to be hired. It is evident that Campbell, the respondents' chief witness on this issue, attempted in his testimony to limit the powers of these em- ployees more than the actual practice justifies. In 1936, in the course of the 'respondents' suit to enjoin the Board's proceeding against the respondents for alleged unfair labor practices, Campbell testified in the Federal District Court- "that he was familiar `with the hiring of labor by complainants [respondents] ; that each foreman hires his own crew. The foremen consist of the various men in charge of the various departments; that there were about fifty-three men in the Tri-State District who employed labor and that these fifty-three men are all supervisors of the various departments and that if they were brought to a hearing of the National Labor Relations Board it would be necessary to' shut the properties down; that com- plainants - never operated 'a property without a foreman ; " 23 Campbell was confronted with this record of his prior testimony and, admitted he so testified. On redirect examination, Campbell stated that in using the word "hire" in the injunction proceeding he meant "placing a man or assigning him to work on his crew only" and that the power of ground bosses and foremen to discharge was limited only to discharging them "from the particular job." On all the evidence, we find that the foremen and other employees discussed in this group are supervisory employees of the - respondents, represent the management in dealing with ordinary workers, have power to recommend hiring of employees and to assign men to work, have power to choose men for work, have power to supervise the x+ This summary of Campbell 's testimony Is quoted verbatim from the "Statement of Evi- dence" under Equity Rule 75, in the District Court of the United States for the Northern .District of Oklahoma and prepared for review by the C. C. A. 10th. The statement of evidence was signed and stipulated to in accordance with the equity rule by counsel for the Board and counsel for the respondents, and was approved, settled, and signed as a true and complete statement of the evidence adduced at the trial by F. E. Kennamer , United States District Judge. Eagle-Picher Lead Co. et at . v. J. Warren Madden, et al. The statement appears in the formal files of the instant case , and is part of the record herein. EAGLE-PICKER MINING & SMELTING COMPANY 741 'work of employees and direct them, and have power to discharge -employees. We find therefore that the respondents are bound by the statements, conduct, and activities of this group of employees.24 B. The background of the unfair labor practices; events prior to July 5,1935; the strike; the back-to-work movement; the organiza- tion of the Tri-State Union Under the impetus of Section 7 (a) of the National Industrial Recovery Act, organization of the respondents' employees, as well as of other employees in the Tri-State area, began in 1933. In 1934 the International had established several locals in the area and had a substantial membership among the respondents' employees. In 1934 and in the early part of 1935, representatives of the International made several efforts to bargain collectively with the respondents. Although early in 1935 some conferences with the respondents and .other operators in the district were held, these efforts met with little .success, since the respondents were not satisfied that the International representatives were `.`duly, accredited." The respondents through their supervisory employees announced to the International represen- tatives in March and April 1935 that the respondents' policy was an "open shop" one and that they were unwilling to treat with the Inter- national as the representative of their employees. No effort was made to ascertain whether or not the International. represented a majority of the employees. The respondents posted notices on their bulletin boards announcing that they were willing to meet with any indivhiual- or group of- employees for purposes of discussing working conditions. Because the attempted negotiations between the International and the respondents proved. fruitless, on or about May 1, 1935, the Inter- national conducted a strike vote. Of the 700 International members who voted, over 600 voted in favor of a strike .2' Accordingly, at midnight, or a little before, on May 8, 1935, the International began a strike against almost all the mines, mills, and smelters in the Tri- State District for the purpose of obtaining recognition- from the operators. including • the respondents. All the mines, mills, and smelters of the respondents were struck. As a result of the strike the respondents' operations, as well as other mining operations in the area, were totally suspended. 24 As stated in footnote 20 above. the Trial Examiner limited the force of testimony con- cerning conversations with these supervisory employees and admitted such testimony as original evidence only. Since the respondents may have withheld cross -examination or other evidence because of these rulings, we shall limit consideration of such testimony where limited by the Trial Examiner. -° It it evident that although a great majority of the International members who voted. voted for the strike. such voters did not constitute a majority of all mine , mill, and smelter workers in the Tri-State area. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleges that the respondents locked out their em- ployees at some time before midnight on May `8, 1935. The evidence shows that the respondents took certain steps between 10 and 11 p. in. on May 8 to halt their machinery and to close down their plants and mills. However, they had been notified by the International that the strike would become effective at midnight and the steps taken by the respondents 26 were simply in pursuance of such notification. The Trial Examiner found that the action of the respondents in closing their mines, mills, and smelters was "a reasonable measure in view of the announced intention of the strike . . . and did not constitute a lock-out of members of the International Union but was a recognition of the existence of a strike and the strike status." The International did not except to this finding. We find that the evidence does not support the allegation that the respondents locked out their employees. Operations in the Tri-State area were at a standstill for several weeks after May 8, 1935. On or about May 24 efforts-began-to end the strike and to provide for means whereby the various employees throughout the district would return to work in order that opera- tions could be resumed.. These efforts crystallized in the form of a back-to-work movement. The record is not entirely clear concern- ing the exact source of this movement. It appears, however, that certain employees and small operators held informal meetings shortly before May 24, 1935, to map a campaign for a back-to-work move- ment. This movement took its first definite form at a meeting of some 28 men during the morning of May 25, 1935, in an open prairie near Quapaw. Among those present were F. W. (Mike) Evans, a mine operator; M. J. Detchemendy, ground boss at Commerce Mining and Royalty Company ; Newt Keithley, ground boss at the South Side Mine of respondent Mining Company; William DeWitt, who had been on May 8, 1935, a ground boss at the Tulsa-Quapaw Mine of the respondent Mining Company; Ray O'Dell, ground boss at the Mary N. Beck Mine of respondent Mining Company ; and other em- ployees, both supervisory and non-supervisory, in ' the district. At this meeting those present determined to complete the organization of :a back-to-work movement, and steps were immediately taken to accomplish this end. On the afternoon of May 25 the first general back-to-work meeting was held at the Fair Grounds in the city of Miami, Oklahoma. About 250 persons attended. At the Fair Grounds meeting, Evans spoke concerning the possibility of termi- nating the strike and resuming operations. On May 25 Glenn Hick- man, a ground boss for the Black Eagle Mining Company, drafted a 'At the Joplin plant of the Lead Company , Leonard Vaughn , the general manager, arrived at the plant shortly before midnight and posted a notice reading : "This plant will be closed indefinitely." EAGLE-PICHER MINING & SMELTING COMPANY 743 back-to-work petition, which was immediately circulated among the employees of the various operators of the district. The petition stated : We, the undersigned, . . being dissatisfied with being forced out of work on account of the strike called by the Inter- national Union of Mine, Mill & Smelter Workers, and being desirous of returning to our jobs at the mines, mills and smelters hereby disavow the acts of said International Union in calling said strike, and declare ourselves willing to work and agree if the majority of the mines, mills & smelters open and permit us to return to work, that we will to the best of our ability prevent any destruction of your property or harm to your per- sons, and by signing our names to this petition bind ourselves together to form an organization for the purpose of protecting ourselves and each other from any and all harm or dangers from any organization opposed to returning to work in this district, and further, those of us who have been members of said International Union by signing this petition hereby resign from said International Union and sever all our connections therewith. Over a period of 2 days, approximately 3,125 names were inscribed on this petition. Meanwhile, on May 26, 1935, a second back-to- work mass meeting was held at the Fair Grounds in Miami, Okla- homa, with approximately 1,500 persons in attendance. Before these persons were permitted to attend the meeting, they were met at the gates and questioned as to their. names and prior employment. Present at this meeting were Newt Keithley, Oscar Bailey, and other supervisory employees of the respondents. At this meeting Mike Evans first.discussed the plan to form a union to aid in the opening of the plants and mines and to end the strike. A meeting to elect officers of the, new union was announced for the following day. On May 27, 1935, approximately 3,000 persons attended the third back- to-work mass meeting at Miami, and the Tri-State Union was there organized. The progress of the back-to-work movement, however, was marked by considerable violence. Although the respondents in their excep- tions state that what violence the Tri-State Union engaged in was due solely to initial provocation by members of the International Union, the evidence fails to bear out the respondents' contention in this matter. It appears that at the back-to-work meeting on May 25 the speakers who urged a return to work were met with considerable vocal opposition on the part of International members. No physical violence occurred. W. W. Waters, a witness for the Board, who was labor relations representative for the Governor of Oklahoma, was present in the Tri-State area throughout this period. He testi- 247383-40-vol. 16--48 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled that he saw no International violence in May, and that he had various conversations with superintendents and foremen of mines and received no complaints of violence committed by the strikers. On May 27, Mike Evans, who had by this time become the leader of the back-to-work movement, was met at his headquarters by mem- bers of the International, who resented the attempt to break the strike. Although the precise details of the occurrence are not clear .from the- record, it. appears that some International members tried to prevent Evans from attending a back-to-work meeting and that Evans called Ely Dry, the local sheriff, for aid. In attempting to aid Evans, Dry was assaulted by certain members of the Interna- tional. On the same day, those persons interested in the back-to- work movement staged their first "pick-handle" parade. Orville Stever, an employee, testified that he went to the Miami Fair Grounds' meeting on May 27, 1935, and found that those present were "milling around and had short pieces of steel and guns and clubs." Robert Tuthill, a superintendent for the Commerce Mining and Royalty Company, warned Stever to leave the meeting since he, was a member of the International. At, this meeting those attending were informed that they could obtain pick-handles stored. at a neigh- boring schoolhouse. Waters testified that at this meeting Joe Nolan, who was an operator in the district at this, time, addressed the crowd and stated, "We are going back up to Picher and take back something that belongs to us. I want you all to load into your cars and go up to Picher." The men were then driven in cars to the main street of Picher where they assembled on foot in a column with Joe Nolan in front and they marched into Picher. "three or four thousand strong." As a result of the back-to-work meetings and in order to give concrete form to the movement, the Tri-State Union was organized at a mass meeting on May 27, 1935. Mike Evans, who admitted that the idea of an organization "may have originated with me," testified that he believed that an organization plan was first decided upon at the first meeting at the Fair Grounds. In any event, on May 27, 1935, the Tri-State Union was formally organized. Im- mediately prior to this meeting 'on May 27, articles of association were drawn up by Kelsey Norman, subsequently counsel for the Tri-State Union. The articles were signed by F. W. Evans; Ray Morris, watchman for the Mining and Smelting Company; Glenn Hickman, ground boss for the Black Eagle Mining Company; Wil- liam DeWitt, ground boss at the respondents' Quapaw Mine ; Harol Irwin, ground boss at the Mid-Continent Lead & Zinc Company; M. J. Detchemendy, ground boss for the Commerce Mining & Royalty Company; John Garretson, employed by the Commerce .Mining & EAGLE-PICHER MINING & SMELTING COMPANY 745 Royalty Company ; A. 0. Jackson, employed by the Childress Lead & Zinc Company; William Anderson, employed by the Commerce Mining & Royalty Company;. Lawrence Medlin, engineer for the Childress Lead & Zinc Company; Newt Keithley, ground boss at the respondents' South Side Mine; and Joe Pruitt, ground boss of the respondents' Bendelari Mine. At the meeting on May 27, 1935, these 12 individuals, the signers of the articles of association, were elected as members of the executive committee of the Tri-State Union. The record does not disclose the process whereby these 12 men were chosen as the officers. At the same meeting the constitu- tion and bylaws for the union were adopted .2T The preamble of the constitution and bylaws of the Tri-State Union states : To unite the metal, mine and smelter workers; to promote their general welfare and advance their interests social, moral and intellectual ; to protect their families by the exercise of justice, very needful in a calling so hazardous as ours. Persuaded that it is for the interests both of our members and their employers that good understanding should at all times exist between the two, it will be the constant endeavor of this organization to establish mutual confidence and create and main- tain harmonious relations. Such are the aims and purposes of the Tri-State Metal Mine & Smelters Union. The preamble does not mention collective bargaining. . The constitution of the Tri-State Union vests.ultimate control in the executive committee, to be a member of which an individual shall have at least five years experience as a vice-principal in the metal mines or smelters in the Tri-State Area . . . and shall have been employed as such in said area for at least three years immediately before his election or have held office in this union. The constitution also contained a provision relating to the qualifica- tions of officers in subordinate locals : A subordinate association officer shall have had at least five years experience as a vice-principal in the metal mines or smelt- ers in the Tri-State area, and shall have been employed as such in said area at least three years immediately before his election. 17 The constitution and bylaws were prepared by Kelsey Norman, the attorney whom Mike Evans had suggested . Both Glenn Hickman and Mike Evans refused at the hearing to testify regarding the conversations held at this time with Norman pertaining to the inception of the Tri -State Union. . Their refusal was based. on a claim of attorney-client privilege. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mike Evans, a witness called by the Board, was vague in his testi- mony concerning the precise definition of a "vice-principal." He stated that he understood the term applied to anyone employed for 5 years in the mines. It is evident from the record, however, and we find, that "a vice-principal," as used in the constitution and as understood in the Tri-State area, applies only to those employees who are ground bosses or superintendents. The executive committee immediately chose its officers, and Mike Evans was elected as president. Evans testified that he protested against such a choice since he was an operator. The protest, if any, was apparently disregarded. The Tri-State Union thereafter rapidly gained impetus. From Campbell's testimony, a vivid picture of the susceptibility of the employees to a movement to return to work, particularly if such a movement was supported by the "bosses," is drawn. Campbell testified : Conditions with labor, the workmen that were out of work, were becoming desperate. There is not much else in this com- munity on which the working man can live except the mines, and that is practically the support of other industry and business in the district. And the men had been on reasonably low wages and, in fact, very low wages up to the time of the strike on account of very S low market prices for concentrates. And being down, being out of work a week or 2 weeks, brought most of them to destitution: Many witnesses who ultimately joined the movement testified, and we find, that they did so only to avoid extreme want on the part of themselves and their families. The purpose of the Tri-State Union at this time was to break the strike and to get the men back to work.28 In order to fulfill'this purpose Mike Evans, president of the Tri-State- Union, immediately took several steps to aid in the resumption of operations.29 Evans and the Tri-State Union took over the task of local law enforcement. The record abundantly shows that Evans, with the acquiescence and aid of Sheriff Ely Dry and other law-enforcement officers, distributed deputy commissions to members of the Tri-State Union. Purportedly to protect property, an elaborate organization was set up whereby "squad cars" were sent throughout the area to patrol the highways and the mines. These activities were directed by Mike Evans, with the assistance of Fred Carpenter, the leader of the squad-car group, with headquarters at the Connell Hotel in Picher, Oklahoma, a hotel owned by Evans. 21 The Tri-State Union itself had a policy against striking. 21 Directly after the pick-handle parade on May 27, 1935 , the Oklahoma State Militia was called into the area. EAGLE-PICHER MINING & SMELTING COMPANY 747 These squad cars contained four or five passengers, all paid by the Tri-State Union and equipped with guns and other arms. Between 75 and 100 men were on the squad-car pay roll. The record abounds in incidents of lawless violence committed by the squad-car men. These squad cars cruised about the. neighborhood, stopping all cars :suspected of containing International members, watching houses of International members during the night,30 and even halting the car of Waters, the labor relations representative of the Governor of Oklahoma. Further, the evidence shows that the squad-car men beat up members of the International and brought them to Evans' head- quarters at the Connell Hotel where Evans, Carpenter, and local law-enforcement agents sat. The squad-car men on at least one occasion brought in the International members whom they had beaten up with the announcement that they "had some prisoners" for the local agents. On another occasion, an International member was ar- rested by Ely Dry, the sheriff, and Puss Blanton, a deputy sheriff, brought to the sheriff's office and ' informed by them that he would be released forthwith if he "pulled away from the International" and stated that an attack on Dry had been authorized by the Inter- national. When the International member refused, he was jailed for a short time. The early organizational activities of the Tri-State Union were confined almost wholly to the activities of the squad cars, to pick- handle parades, and to violence and threats of violence in order to pave the way toward a mass resumption of work. This campaign was financed in very substantial part by the respondents, as de- scribed below. In the early part of June the plan to break the strike and to re- sume operations was furthered by the negotiation of contracts be- tween the Tri-State Union and various operators, including the re- spondents. Finally, on or about June 12, the respondents' mines and plants reopened, and by the middle of June, with the exception of the Big John Mine and the Galena, smelter, their operations were substantially manned. The exact reason for the delay in reopening the Big John Mine does not appear from the record. The Galena smelter was not opened until on or about July 17, since the respondents' attempt to reopen it on June 28 failed because of a clash between the Interna- tional members and armed guards within the smelter. The respond- ents adduced considerable testimony concerning the violence which occurred on June 28 at the smelter. It is clear that the International planned to and did, on being informed of the contemplated reopen- 30 As described by one member of the International who had been harassed by the squad cars, "There wasn't no sleep them days," 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing of the Galena smelter, engage in mass picketing. It is also clear that on the evening of June 28, members of the International Union fired shots into the smelter. There is evidence, however, that on June 27, the respondent staffed the smelter with approximately 20 guards who obtained arms inside the smelter, and several Inter- national members testified that the first shot fired on June 28 was fired from inside the smelter at the International members who sur- rounded the plant. Among the guards, moreover, was Luther Sons, who, the testimony shows, was a reputed criminal in the area. We do not find it possible to apportion precisely the blame for the vio- lence that occurred in connection with the attempted resumption of operations at the Galena plant. Immediately after the Galena riot, the State Militia of Kansas wa s called.31 As a, result of the Galena riot, certain members of the International were tried by the military court and convicted of participation in the riot.U2 C. The respondents and the Tri-State Union As described above, the respondents through their agents' activity participated in the back-to-work movement and in the initial organ- ization of the Tri-State Union. Of the original signers of the articles of association and of the original members of the executive committee in whose hands was vested the control of the Tri-State Union, three were supervisory employees of the respondents. At the same time that the Tri-State back-to-work movement was .going on, the respondents commenced their own. The evidence is undenied that Norton Ritter, Oscar Bailey, and other supervisory employees toured throughout the district in an attempt to persuade the striking employees to return to work. James C. Thompson, one of the respondents' striking employees, testified that Bailey and Ritter drove up to Thompson's house late in May or early in June in a company truck. Bailey and Ritter told Thompson that the company would soon resume operations, and they inquired whether 'Thompson was interested in going back to work. Thompson replied that he was not yet ready to return to work, and Ritter told Thomp- son that if he did not return to work soon he would never again work for Eagle-Picher. Further, Thompson testified, and we find, that Ritter offered to pay Thompson wages if Thompson would take 81 It appears from the evidence that arrangements were made for the arrival of the Kansas Militia at some time prior to the International's firing shots into the smelter. The respondents' witnesses all testified , and we find , that no shots were fired by the Interna- tional Union at the smelter until 9 or 10 o 'clock on the evening of June 28. The records of the movements of the Kansas Militia show that the military force had begun its journey to Galena at some time before 9 o 'clock on June 28. 82 The Galena riot was plainly not provocation for the armed squad-car activities of the Tri-State Union , most of which occurred prior to the riot , and we do not believe that It provoked the pick-handle parade in April 1937 , nearly 2 years later. EAGLE-PICHER MINING cc; SMELTING COMPANY 749 a company truck and "get men that we know to sign that petition to go back to work like the rest of them." The respondents also took concrete steps to aid the newly organized Tri-State Union. Although Mike Evans testified that during the period of the organization of the Tri-State Union, he had no contact with the respondents, he later testified that because he found that the local Red Cross was inadequate as a relief agency, he discussed the matter with the local businessmen and operators, including the respondents. Evans early in June conferred with George Potter, the vice president of the Mining Company, who was in charge of labor relations at the Mining Company and at the Lead Company during the strike. At this conference which took place in the Mining Company office, Potter expressed his willingness to help Evans and to furnish money. Potter arranged for the granting of credit to the Union by the Security Bank & Trust Company of Miami, Okla- homa, whose vice president, Charles Neal, was the owner of mining properties in the district. Evans was not clear on the precise ar- rangements concerning these contributions. It appears, however, that Neal instructed W. P. Howard, the cashier of the Security Bank & Trust Company, to grant the Union funds when and as requested by Evans. Potter had previously assured Evans that the credit would be taken care of. During the month of June 1935, $15,000 was withdrawn from this bank and paid to the Tri-State Union under this credit arrangement. On various occasions in June, Evans and Hickman, as secretary of the Union, executed demand notes to the bank for substantial amounts, and the amount of the note in each instance was paid by the bank to the Union. Evans could not recall whether the notes had been repaid or what had become of them. Howard, the cashier of the bank, similarly could not recall what had happened to the notes. No record of the transactions was kept either by the Union or by the bank. However, either on the day of withdrawal or the following day, remittance in full for the amount withdrawn was received by the bank by check from the respondent Mining Company drawn on a bank in Kansas City. The evidence shows that during the period of organization in June and July, the Tri-State Union expended large. sums of money for squad cars, and for other organizational purposes. It is undenied that the Tri-State Union collected no dues until the first or second week of July 1935. We find that the respondents contributed before July 5, 1935, $15,000 to the Tri-State Union by means of the payments to the bank as described above. The respondents do not deny that such payments were made; Potter did not testify at all. Evans testified, however, that Potter had agreed to make the payments solely for purposes of relief and had specified that the money was not to be used for organi- 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zational purposes. We do not believe this testimony, and find that no such limitation was imposed. Upon all the evidence, we are con- vinced that the respondents had knowledge of the general purposes for which the money was to be used, including the "squad car" activities, and we so find. The Tri-State Union financial records show that at least $5,000 was expended for guards and armed patrols prior to the collection of any dues by the Tri-State Union. This $5,000 came from the funds supplied by the respondents. Finally, the status of Mike Evans warrants special attention. Evans was a leading financier in the district. Prior to 1935 he had been interested in and operated various zinc and lead mines, employ- ing a substantial number of employees. In 1935 during the period in question, Evans operated the Craig Mine, employing 35 men. Evans was also owner of the Connell Hotel at Picher, had a partner- ship selling second-hand steel cable, owned a business building in Picher, owned a night club and a poolroom, and was part owner of the Ford Agency in Picher. He was a member of the Tri-State Ore Producers Association, an association of the producers in the area. As described above, he testified that the idea of organizing the Tri- State Union may have been his.33 It is abundantly clear from the record that at each of the back-to-work movement meetings at Miami he played a leading part, and also, with Glenn Hickman and Kelsey Norman, was a principal speaker urging those attending the meetings to return to work.- He personally rented the building which the Tri-State Union used as its headquarters in Picher, although the rent was paid by union checks. Not only was Evans thus identified with the business interests in the area, but he was during this period, closely connected financially and otherwise, with the respondents 34 From the Craig Mine, leased from the respondents, Evans sold ore to the. respondent Mining Company and was selling such ore at the time of the strike. Further, since 1935, he acquired other mines and leases including the Nesbitt Mining lease from respondents at no cost to himself. For the 3 years-1935, 1936, and 1937-the gross sales of crude ore to the respondents by Evans amounted to over $385,000. Further, the respondents' financial contributions to the Tri-State Union were made directly through and to Evans. Finally, the record shows that Evans and Potter, the respondents'. highest ffi He also testified that his own employees at the Craig lease had first broached the idea of a back-to-work movement. 4 The respondent Lead Company owned the ground lease, including a short-term can- cellation clause, on all property in Picher. and therefore owned much of the property on which Evans conducted his various enterprises. EAGLE-PICHER MINING & SMELTING COMPANY 751 representative in the area at this time, conferred concerning the problems at hand. Although Evans denied that he had consulted Potter concerning organizational work, it is nevertheless clear that he had close contact with Potter during this period, both in the course of negotiating the financial contribution, discussed above, and in the course of the execution of the contract between the respondent Mining Company and the Tri-State Union. Potter failed to testify, although he was the chief representative of the respondents at this time and although he was the respondents' representative with whom Evans conducted his dealings. Under these circumstances, we find that Evans was not primarily a representative of the workers, but was rather a representative of the respondents in a design to stamp out the International organiza- tion. We further find that Evans acted as agent on behalf of the respondents, among others. D. The respondents' relations with the Tri-State Union after July 5, 1935; interference, restraint, and coercion As described in the section immediately preceding, the respondents contributed financial support to the Tri-State Union; assisted the back-to-work movement by sending its supervisory employees out among the striking workers in an effort to persuade them to abandon the strike and their membership in the International; through ground bosses and other supervisory employees, directly participated in and shaped the organization and administration of the Tri-State Union; and attempted to crystallize and make permanent its acts of hostility to the International and its favoritism to the Tri-State by entering into a contract with the Tri-State. This conduct occurred before July 5, 1935, the date on which the Act became effective, and, there- fore, did not constitute unfair labor practices under the Act. When the Act became effective on July 5, however, the respondents in no way altered their course of conduct in order to comply with the Act's requirements or to give to their employees that freedom of self- organization which they had hitherto denied them. On the contrary, not only did the respondents wholly fail to disassociate themselves from the Tri-State Union, and not only did they accept the benefits of their prior interference, but also they took further active steps to continue their efforts to destroy the International and to encourage the Tri-State Union. The continuance of its conduct, illegal on and after July 5,1935, is here summarized.3° 3-1 The relations between the respondents and the Tri-State Union concerning the hiring and discharge of employees and the subsequent history of the contract as discussed below. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) The respondents' financial and other support of the Tri-State Union We have found that prior to July 5, 1935, the respondents contrib- uted $15,000 to the Tri-State Union, and that this money represented the only source of income to the Tri-State Union in the early part of its existence. Although Charles Windbigler, an employee of Evans who subsequently became the Tri-State Union's bookkeeper, testified that a part of the sum purportedly expended for relief was eventually repaid by the recipients of such contributions, he admitted that no records were kept either of this original transaction between the re- spondents and the Tri-State Union or of the payments 36 to and repayments by these workers. Windbigler stated that this money received from the respondents was considered a "subscription" the receipt of which and the payments out of which were not accounted for in the Tri-State Union's balance sheet or financial statements. The evidence shows that in June and the early part of July, the Tri- State Union had many expenses other than for "relief," such as for guards and squad cars described above. In June it had secured the printing of copies of its articles of association. On June 7, it ordered 500 membership cards. It also purchased ledger books and other equipment in June. Evans was vague in his testimony not only concerning the precise dates when these expenses were incurred but the date on which the Tri-State Union first collected dues. 37 No dues books, however, were ordered until July 5 and these were not delivered until July 19. Members of the Tri-State Union were in- formed by its newspaper on August 2, 1935, that "So far ... none of you have been asked to repay the tremendous expense of getting you back on the jobs," while the newspaper on October 5, 1935," reported that "The [financial] statement which was read by Mr. Hickman does not include several thousand dollars that was spent before the first dues were collected and for which the members would in no way be responsible." The payments by the respondents to the Tri-State Union did not cease on July 5, 1935. Evans insisted that he drew no money from the "subscription fund" after July 1, 1935. No records were pro- duced by Evans or by the respondents to corroborate this. Contra- dicting Evans' testimony, W. P. Howard, the cashier of the Security Bank, who participated in these transactions, testified that on July 8, 1935, he gave Evans $2,500, and that the Security Bank's record showed the receipt of a check from the Eagle-Picher Mining and Smelting Company for $2,500, drawn on the Commerce Trust Coln- 80 Evans testified that he simply drew cash from the bank, sometimes to the amount of several hundred dollars , and distributed it without notation. 37 He estimated this latter date as early in July. EAGLE-PICHER MINING & SMELTING COMPANY 753 pany of Kansas City and ' dated July 8, 1935.38 We find, therefore, that the respondents, through the Mining Company, contributed $2,500 to the Tri-State Union on July 8, 1935. The record discloses further instances of support to the Tri-State Union after July 5, 1935: Thus it is undenied that at least until November 12, 1935, the executive committee of the Tri-State Union regularly held its meetings during working hours, 39 and although the respondents' supervisory employees were members of the com- mittee, their wages were not deducted; that in September 1935, officers of the Tri-State Union were permitted to address laboratory employees on company time and property; 40 that on a single day in August 1935, Tri-State officers were permitted to collect dues and enroll members inside the gate at the Joplin plant for 8 hours; that company bulletin boards were used for Tri-State Union an- nouncements; that copies of the Blue Card Record, the Tri-State weekly newspaper, were commonly and up to the time of the hearing distributed on company property; that collection boxes were main- tained on company property where Tri-State dues payments were made; and that the respondents inserted paid advertisements in the Blue Card Record, the expenses for the printing of which the Tri- State Union did not pay but which were paid by revenue from what- ever advertisements the printer could obtain. 41 (2) Participation by the respondents' supervisory employees in the administration and other activities of the Tri-State Union As'described above, the respondents' supervisory employees were active in the formation and initial management of the Tri-State Union. Present at the early back-to-work meetings and other organ- izational meetings were Newt Keithley, William DeWitt, Ray O'Dell, Joe Pruitt., Oscar Bailey, Carl Juergens, and L. C. ("Rats") Marcus. Of the 12 men who signed the articles of association 3, DeWitt, Pruitt and Keithley, were supervisory employees of the respondents. No move was made by the respondents, its supervisory employees, or the Tri-State Union to purge the latter organization after the passage of the Act. DeWitt, Keithley and Pruitt remained as mem- 31 As stated above, the Security Bank received checks from the respondents on the same day as or immediately after money was paid to Evans. 3° Evans at first denied that such meetings had occurred on company time . When con- fronted with the executive committee 's minutes his recollection was refreshed and he admitted this fact. 4° These incidents are described more fully below. 41 Windbigler, the Tri-State Union's bookkeeper , could not recall who paid for the first issue of the Union's newspaper, dated August 2, 1935 . This issue contained no advertise- ments . It is evident that other activities of the Tri-State Union were paid for by means other than dues. For example, the minutes of the executive committee meeting of April 26, 1936 , report , "Plans for picnic were taken up for discussion . Pres. Evans announced that 3 of the major operators in the field had made offers to bear the expense of the picnic. Pres . Evans to contact the operators tomorrow." 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hers of the executive committee of the Tri-State Union. Sometime prior to 1937, DeWitt withdrew from the committee, while in 1936, Oscar Bailey replaced Joe Pruitt. Thus it appears that at least until July 1937, the respondents were represented on the committee by two or three supervisory employees. Ultimate control of the Tri- State Union rested in the hands of this committee by virtue of its constitution which provided : The Exclusive Management of the Union shall be vested in an executive committee of 12 members, which committee shall pass upon all matters pertaining to the affairs of the Union, and its decision by a majority vote of the committee shall be final and binding. It is apparent from the evidence that the power of the committee over Tri-State affairs was fully exercised. Thus Jess Thompson, a witness for the Board, who had joined the Tri-State Union in 1936, testified that motions at the Tri-State Union meetings were usually made by members of the executive committee, and that if any rank and file members protested, Kelsey Norman, the Tri-State Union's counsel, told the protesters to "sit down and shut up." 42 Not only did the respondents' supervisory employees participate in the initiation and management of the Tri-State Union but, almost without exception, its high ranking employees were members of the Union. Thus John Campbell, personnel manager of the Mining Company and in charge of issuance of rustling cards which entitled applicants to be assigned to work, Frederick Clearman, chief fore- man in the wool department at the Joplin plant, Alton Jones, in charge of the insulation division at the Joplin plant, Joe Newby, personnel manager and superintendent of the Galena smelter, Walter George, personnel manager of the Joplin plant, Walter H. Fruden- berg, superintendent at the Central Mill, Foster Mays, in charge of the Lead Company's electrical department, Dave Shaw, yard foreman at the Galena smelter, B. L. Geddes, superintendent of the white-lead department at the Galena smelter, James Shaw, foreman at the Galena smelter, John R. Sheppard, head of the research laboratory, and "Rats" Marcus, ground boss at the LaSalle mine, all were mem- bers of the Tri-State Union.43 As described above, each of these individuals had at least some power to select employees for work, to assign work and to discharge employees. Most of the individuals '2 -low persuasive was the control by the operators and "bosses" over the Tri-State Union is indicated by the minutes of the executive committee's meeting on October 30, 1935: "The business of paying members of the Ex. Comm. a specified amount for expense money was again introduced, and the committee voted to pay Ray Morris $15 per week as his salary as vice-president of the organization. Other members of the Ex. Comm. asked that nothing be paid them until Pres . Evans had conferred with their various bosses to determine their reactions." 43 The minutes of the executive committee meeting of June 30. 1936, report : "President Evans introduced the unfinished business of appointing representatives at the various EAGLE-PICHER MINING & SMELTING COMPANY 755 named above admitted that they had attended meetings of the Tri- State Union and at least to some extent participated therein. The respondents, however, contend that these supervisory employees joined and participated in the Tri-State Union voluntarily and with- out the respondents' authorization. Several factors lead us to hold otherwise, although the respondents would not be absolved in any event. Although a, few of. the. supervisors joined at an earlier date, a great majority became Tri-State members virtually simultaneously in August or September 1935. The date of their joining coincided with the period during which the respondents, as described below, exerted pressure upon John Sheppard, acting director of research for the Lead Company, and upon the supervisory and other em- ployees working under Sheppard, to join the Tri-State Union.. Fur- ther, the reasons assigned by these supervisory employees are not convincing. With a single exception, none of them had ever been members of any union before. Walter George testified that he joined because "it was just a family proposition." Oscar Bailey asserted that he joined because- he "wanted to see the men go back to work" and "the membership of the union increase." Walter Frudenberg testified that he joined in August in order to assist the back-to-work movement, and that by joining "I was adding my moral and little financial support." By August, as described above, the back-to-work phase of the Tri-State Union had long since successfully concluded. "Rats" Marcus explained that he joined in August because "I felt that that was my place to do it, the back-to-work movement, I wanted to work and 1 ,figured. that -was about the only way a man,could get to work." Again, Marcus did not join until sometime after the back-to-work movement. Finally, that the membership of these in- dividuals was not wholly spontaneous is indicated by the fact that, again almost without exception, they left the Tri-State Union in April or May 1937. No explanation for the coincidence of dates appears from these witnesses' testimony. The inference is inescap- able, particularly in view of the Sheppard incident described below, that the respondents guided the joining and resignation of 'these supervisory employees, and we so find.44 mines and smelters . He liked a suggestion . . . that a ground boss meeting be held with view to establish good will and interest among the members . . . . It was unanimously decided that any plan for appointing representatives would be ineffective unless the ground boss or other boss was first brought in line." 44 Of course, even if these supervisory employees' entrance into and participation in the 'Tri-State Union were not expressly authorized by the respondents , the latter would never- theless be responsible . "While the evidence showed that . . . the plant manager, and . . . the plant superintendent, repeatedly warned against violations of the . . . Act, .. . They tool: no effective means to stop repeated violations of the Act. Furthermore with respect to the acts of the supervisory foreman , the doctrine of respondent superior applies, and petitioner is responsible for the actions of its. supervisory foremen, even though it had no actual participation therein." Swift & Company v. National Labor -Relations Board, 106 F. (2d) 87 (C. C. A. 10th). 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Not only did the respondents, through its supervisory employees, participate in the general conduct of the Tri-State Union but also in a like manner they were able to and did participate in controlling mem- bership in that Union. The constitution of the Tri-State Union provided that: The executive committee . . . may determine the requirements and qualifications for membership in the Union; suspend or expel any members for violating any provisions hereof or of the rules and regulations of the executive committee. As described above, the respondents, through three of their super- visory employees, were represented on this committee. The evidence establishes, further, that this power was exercised. Thus, for example, the minutes of the meeting of the committee on October 30, 1935, report : Forrest Taylor, who had ... made application for the Tri- State Union made the mistake of remarking to the. clerk in the office that he preferred the International Union to ours. He was brought before the committee where he reiterated his statement. The committee immediately voted to refund his dollar and send him on his way. Similar minutes of the meeting on October 10, 1935, state : Those rejected Kern Byrd. There was only one. protest against this man, but it was the vote of the Ex. Comm. that he was not to get his card. At a regular meeting of the Tri-State Union's executive committee on January 14, 1936, Mr. Evans proposed for vote that all applicants for membership in the Union shall be recommended either by their former em- ployer or by some member of the executive committee. This mo= tion upon being put to vote, was unanimously passed by committee members .45 The record is replete with evidence that by means of this requirement of recommendation,' the respondents, through their supervisory em- ployees, exercised the rights of approval or disapproval of Tri-State Union candidates. The minutes of the meeting of the Executive Com- mittee, March 10, 1936, state : Oscar Bailey [one of the respondents' ground bosses] carne be- fore the committee to explain why he thought Van Treece should not have a blue card in the union. Bailey said that Van Treece lived with Forrest a radical international. 45 The Tri-State Union's policy of excluding active International members , and the rela- tion of this policy to the respondents ' policies are described elsewhere. EAGLE-PICHER MINING & SMELTING COMPANY 757 Ellery Mitts, a former member of the International, testified, that he appeared at a meeting of the Tri-State Union in an attempt to join, and that Joe Pruitt, one of the respondents' ground bosses, stood up and announced that Mitts "was no good for anything." Mitts' ap- plication was thereafter rejected. Many witnesses testified that they had been directed by the Tri-State Union to obtain approval of.their applications from their former superiors and that, on attempting to obtain such recommendations from the respondents' supervisory em- ployees, they had been summarily refused and were unable thereafter to join the Tri-State Union. Included among those of the respond- ents' supervisory employees to whom Tri-State Union applicants were directed were Oscar Bailey, Walter Frudenberg, Joe Pruitt, Norton Ritter, Allen Best, who was the head of the metal department at the Joplin plant, Joe Newby, Jim Shaw, foreman at the Galena smelter, and Newt Keithley. Almost uniformly, these supervisory employees refused to recommend persons who were International members. We find, therefore, that the respondents; through their agents, passed upon and substantially controlled membership in the Tri-State Union. (3) The policies of the Tri-State Union: hostility toward the International; intimidation and violence As described in Section III B above, the Tri-State Union was con- ceived in order to break the strike and defeat the International. Evans conceded that it was formed "to keep the plants running" and that the. prei n'}b1e of its constitution, in which its purposes are set out, omits any mention of collective bargaining. As .recounted by the Blue Card Record'46 the Tri-State Union's official newspaper : The first meeting recorded [was] for the purpose of forming an organization in opposition to the Internationalites.... An organization to wipe out an organization was the theme around which a multiplicity of planned detail was built. An organization to whip an organization . . .41 In its unrelenting and uncompromising opposition to the Inter- national, the Tri-State Union never flagged., . Indicative of its atti- tude are typical excerpts from the Blue Card Record : The head of this Union, his name is Mike, He and Joe Nolan were in the lead of the Parade with Pick Handles when we broke the strike. 4e The evidence shows, and we find, that the Blue Card Record (known for a brief time as the Tri-State Metal Mine and Smelter worker ) stated the official policies of the Tri- State Union and the Executive Committee. 4 From "A Brief History of the Tri-State Union ," written on Its first anniversary, by Glenn Hickman. former ground boss in the area, editor of the Blue Card Record and mem- ber of the Tri -State Union executive committee. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mike said let the yellow bellys stay on relief, And drink their dried milk and eat canned beef. Because our little Union is just doing fine, Let the rest of the strikers stay on the soup line. They are losing their cars and selling their hogs. For the International Union has gone to the Dogs." Of the American Federation of Labor with which the Interna- tional was. then affiliated, the Tri-State newspaper' observedi. `The A. F. of L. is infested with reds and communists," 49 and charged that "William Green and his dirty blood-sucking leeches . have the interest of only one small minority at heart, namely, the racketeers who run the American Federation of Labor." 50 The Blue Card Record, after the International affiliated with the Coin- mittee for Industrial Organization was equally as violent in its de- nunciation of John L. Lewis and the C. I. O. The Tri-State Union's hostility toward the International further took concrete form in its persistent policy of excluding from membership all persons suspected of past or present affiliation with the International.51 As stated in an editorial of the Blue Card Record, dated March 5, 1937, and ell titled "Danger From Within" : That spirit [of the Tri-State Union] is rapidly being diluted (perhaps polluted would be a better word) with the trash of the International Union-more recently known as the C.I.O. It is up to us to keep these men out . . . Now, we don't want that kind of man in the Blue card union and we don't propose to have them . . . We know . . . the way to keep it free from the cancerous corruption of red-necked radi- cals. And this we most emphatically are going to do.52 In similar vein, the Tri-State paper on November 9, 1935, reported that: President Evans stated that the hunting season was open and that it was time for the blue card members to go hunting „ for members of the Tri-State Metal, Mine and Smelter Workers Union who still had cards in the old .International Union. 9° From the Metal Mine and Smelter Worker, October 5, 1935. 4° From the Metal Mine and Smelter Worker, August 17, 1935. 50 From the Metal Mine and Smelter Worker, November 2, 1935. 61 The Tri-State Union's constitution provided that membership therein was closed to members of any other organization in a like industry . We recognize that this is a com- mon provision in the constitutions of labor organizations . As described herein , however, the Tri-State Union's exclusionary policy went far beyond ordinary practices and beyond the provisions of its own constitution. 52 Since, as found below , membership in the Tri-State Union was a universal requirement in the Tri-State area, the Tri-State Union virtually controlled eligibility for employment in the district. EAGLE-PICHER MINING & SMELTING COMPANY 759 There have been several reports of this lately, and two members particularly were accused of this. In his first . anniversary speech to the members of the Tri-State Union in May 1936, Evans stated, " . . . we'll pick who we'll work with . . . and if you men do your part in helping us catch these undesirables, we will keep them weeded out." To keep the "undesirables weeded out" the Tri-State Union devised an elaborate system of passing upon applicants.-Is The first step was to require immediate resignation from the International and the turning over to the Tri-State Union the applicant's International membership card. If the applicant refused this, he was precluded from further consideration. 54 Thereafter, the applicant's name was presented to the membership for consideration. Names of appli- cants were listed weekly in the Tri-State newspaper; if the applicant was suspected of past activity on behalf of, or present affiliation with, the International, his name was followed by an asterisk. "Bal- lots for protest" were supplied all members. The next step was to parade all applicants across a platform before the membership so that the members could "have a look" at the applicants before they voted. Prospective members were asked whether they had picketed, how long they had been in the International, and whether they would defend the Tri-State Union with pick-handles. Three pro- tests. excluded the applicant. Even if he was approved at this stage, the executive committee could thereafter reject him. If rejected, the applicant might renew his application in 90 days if during that period he "stayed away from the International Hall." The minutes of the various locals amply indicate the intense scrutiny to which suspected International members were subjected .55 Their applica- tions were held over and extensive investigation was made. The 53 The policy of requiring recommendation by foremen or other supervisory employees who themselves were members of the Tri -State Union is described above. There is ample evidence to show that such recommendations were intended to be and actually were based on the absence of known International sympathies , and we so find. 64 The Tri-State Union after only a short time acquired by this system what a witness described as a '.'washtub full" of International membership cards. much of the evidence at the hearing concerning International membership was obtained from International cards which were in the custody of the Tri-State Union. 55 Typical excerpts from the minutes include : "First business of meeting. Handling re- jected applicants . . . (5) Jimmy Darwell [who was rejected ] says he picketed only one time. Had three stamps in book" (executive committee. Sept. 18, 1935), "Harvy Van- alyke rejected by Ex. Comm. because he had 4 strike stamps in book" ( executive commit- tee, October 23, 1935 ). "Haller was reprimanded by F. W. Evans for Past International Union activities , and admonished to be very careful with whom he associated in the future" (executive committee , Jan. 21, 1936). "First business of committee to pass on member- ship applications. All those approved who did not formerly have membership in the International Union" ( executive committee , Jan. 28, 1936). 247383-40-vol. 16--49 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tri-State Union had on its pay roll special investigators to act on these matters .56 The net result of this system is described in an editorial entitled "Hard for the Strikers," in the Tri-State Union paper of August 31, 1935: With a constitutional requirement of only three blackballs to keep a man out, the Tri-State Union has turned out to be one of the most exclusive organizations in the district. Nor was the Tri-State Union any more kindly disposed toward the labor movement in general or toward freedom of self-organiza- tion. Its editorial pages contained anti-labor cartoons, and it promptly announced that the Act was unconstitutional. It is appar- ent from the evidence that the Tri-State Union did not even identify itself with the interests of the employees. Thus, in commenting editorially on proposed 40-hour week legislation, the Blue Card Record asked : Are we going to continue to fight as individual operators for our own greedy interests ... or are we going to get our heads together and work out some reasonable and fair plan for re- ducing production in the interests of not only operators, -but labor as well.67 The Tri-State Union had a rigid anti-strike policy; its constitution provided: Whenever the General Secretary or Treasurer shall be satis- fied that any member of the Union is or has been acting as ... an inciter of a strike or as a participant therein, which act is or was undoubtedly detrimental to the best interests of the Union itself, he shall immediately enter an order . . . to suspend such member from membership.58 Finally, we are unable to find that the Tri-State Union was ever intended to or actually did engage in collective bargaining on behalf of its members. As has been pointed out, the preamble of its con- 5e The entire process is described in a Blue Card Record editorial dated March 5, 1937 : "A fairly good system of voting on these applicants [i. e. International members] has been worked out . . . An applicant must not only give his name, but also make his appear- ance before the entire local where his true identity is in doubt. Also his name must appear in the paper for at least one week before be is eligible for a vote . . . One way they can be stopped from making applications is for foremen of the district to refuse to recommend them." "Blue Card Record, June 27, 1937. As has already been described, Mike Evans was an operator throughout this period. Joe Nolan, who was vice president of the Tri-State Union, who succeeded Evans as president in November 1937, and who by virtue of his lead- ership in the pick-handle parades was known as "The Pick -Handle King" was also a mine operator at the time of the strike, employing approximately 25 men at the Luck O. K. mine. 68 In a poem entitled "The Racketeer," printed in the Tri-State paper of November 2, 1935, this policy was stated as follows : "The operators have been fair with all their employees ; let no bohunks ever dare say 'strike' to blue card boys." EAGLE-PICHER MINING & SMELTING COMPANY 761 stitution does not mention collective bargaining either directly or indirectly as one of the purposes of the organization. Its constitu- tion does state that the Tri-State Union's executive committee- which we have found to be composed largely of ground bosses and other supervisory employees-"may negotiate contracts." There is no substantial evidence that any such attempts were made. Mike Evans, whom we have found himself to be an operator who was paid $385,000 by the respondents for his products between 1935 and 1937, testified that at various times the Tri-State Union negotiated in respect to wages with the operators and that "we got a raise for the men every time we asked for it." On the other hand, John Camp- bell testified that wages paralleled the market price of the ores, and that the increases in wages which occurred were due to the increase in market prices. Further, Campbell, the Mining Company's per- sonnel manager, stated that at no time did he make any inquiry whether or not the .Tri-State Union represented a majority. Neither he nor any other officer of the respondents testified that at any time after the Act was passed did the Tri-State Union seek to negotiate with the respondents.59 Finally, it is apparent that the leaders of the Tri-State Union did not approve of the practice of bargaining collectively. Thus the minutes of a meeting of the Cherokee Local of the Tri-State Union, held on March 17, 1937, and attended by Mike Evans, Glenn Hickman, treasurer and editor of the Blue Card Record, and Kelsey Norman, report that : Kelsey Norman spoke at length regarding the purposes of the. blue card organization . . . [he] told them if they were not satisfied with working conditions where they happened to be working, to confer with their employer or Mr. Norman 5o and try to iron things out and not be griping. In the light of this evidence, we find that the sole function of the Tri-State Union was to act as a counter organization to the Inter- national. This was clearly the function intended for it by the respondents. The record is replete with evidence of the Tri-State's violent methods of fulfilling this function. Chief among its weapons was 69 The respondents' estimate of the Tri-State Union is most clearly indicated by Potter's remark to Ernst Berry , International representative , on July 16, 1935 . Over a month after Potter had signed a contract with the Tri -State Union, Potter told Berry, " Some day I realize that we are going to have to sign a contract with a bona fide labor organizaion." 60 There is evidence that Norman 's interests were not wholly with the employees. In the course of his address to the laboratory employees, described below, Norman was asked, "Are your chances of getting a fob as a corporation lawyer high?" Norman replied, "An attorney does not seek employment . . . If I should seek employment with a corpo- ration I am inclined to think a corporation would favor me for my work in this organiza- tion." In the same address Norman told the employees "I haven't received a penny salary out of the dollar [dues ] paid in. I have devoted practically every moment of my time- since May 27 to this work." 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that of the "pick-handle" parades first introduced on May 27, 1935. As described by Burt Craig, a Tri-State member and former squad- car driver, "a pick-handle is something like a badge" so that anyone carrying a pick-handle was thereby known to be a member of the Tri-State Union. After the first parade on May 27, 1935, threats of pick-handle parades were used constantly against International ac- tivities. Thus, the Blue Card Record of February 19, 1937, in com- menting on the C. I. O. strikes in Detroit, Michigan, contained an article entitled "Hickory Handles Might Turn the Trick," suggest- ing that the strikers and C. I. O. members could effectively be routed by the pick-handle method. Again an editorial in the Record of March 5, 1937, recited the dangers of a resurgence of the International and stated : We know the spirit of May 27, 1935, is still alive-that there are many more now than there were then willing to shoulder pickhandles if necessary to protect their jobs 81 The evidence establishes that these threats were realized. The activities of the squad cars, which cruised about the area; beating International pickets and members, have been described above. These activities did not cease after the respondents' plants had been re- opened and the back-to-work movement completed. Serving as body- guards for Evans throughout 1935 were Sylvester Walters and Roy Jamison. Both these men were on the pay roll of -the Tri-State Union ; Walters was paid $738 on September 30, 1935, by that Union. Dee T. Watters, a witness called by the Board, an officer attached to the Oklahoma State Bureau of Criminal Identification, identified Walters as "Missouri Criminal Number 1." Watters also testified to Jamison's criminal reputation. Similarly W. W. Waters, labor relations representative of the Governor of Oklahoma, identified these two Tri-State Union employees, whom the evidence shows to have been active in violence against International members, as "rather top notch and notorious" criminals. Incidents of Tri-State violence -committed against. International members are nulnerous.62 Thus on September 14, 1935, John O'Dell, who was 66 years old and an International member, was beaten, while picketing, by five squad-car men. While sitting on a boulder, O'Dell was attacked with black- 61 As stated above , applicants for membership in the Tri-State Union were asked if they were willing to shoulder pick -handles. sa Vicious brutality was also committed by the ' local law-enforcement officers. In June or July 1935 , one Loper, an elderly gentleman who was formerly a justice of the peace, was .addressing a group of men, women , and children in a vacant lot in Hockerville , Oklahoma. He was sitting down talking on constitutional rights. Ely Dry, the Picher Sheriff, and Puss Blanton, a deputy who had been a member of the squad-car group , and was at one time the recipient of money paid by the Tri-State Union, drove up. Dry ordered the people to "scram." Loper asked them to "sit still." Blanton then hurled tear gas into the ;group, injuring a number of the women and children present. EAGLE-PICHER MINING & SMELTING COMPANY 763 jacks by these men. They "tore the side of [his] face loose," kicked him, and broke his arm. Among these five men were Jamison and Peck, both of whom were on the Tri-State pay roll. Similarly on October 9, 1937, Neal Nowlin, an International member, was black- jacked while distributing a paper containing articles by International officers. Nowlin's assailant was Burt Craig, a Blue Card member and at one time on the Tri-State pay roll. The climax of the Tri- State Union's violence was, however, reached on April 11, 1937, when in opposition to a scheduled International meeting another pick-handle parade was staged in Picher, Galena, and Treece. In the course: of this demonstration, directed from a sound car by Joe Nolan, the International hall at Treece was wrecked, shots were fired into the hall and its records were removed. International mem- bers were beaten with the pick-handles and their union buttons forcibly removed.63 So successful was this Tri-State demonstration in creating disorder and forestalling the International meeting that when the International scheduled a meeting at Baxter Springs on July 25, 1937, the officials of that city were forced to recall permis- sion to the International to hold the meeting because of Evans' threat to hold a counter meeting. The respondents contend that the Tri-State Union's actions were in self-defense, required by the violence of the International members. As described above, the chief violence attributed to the International occured at Galena, responsibility for which we cannot apportion.84 The only other lawless acts possibly attributable to the International invoh;ed,.,the.•shooting of Lavoice Miller, a Tri-State member, on April 11, 1937. This incident cannot properly be assigned as the reason for the Tri-State's parade and violence on April 11, 1937, since the evidence abundantly shows that elaborate preparations, in- cluding instructions, and the distribution of free food and liquor, had been made at the Tri-State hall on April 10, before Miller was injured. The respondents further contend that they are not responsible for the Tri-State's hostility to and violence against the International. Several considerations lead us to reject this contention and to place at least partial responsibility at the door of the respondents. First, as described in Section III B above, the Tri-State Union's violence and lawlessness was marked and severe in June and early July of 1935, when the Tri-State Union's squad cars patrolled the area with armed occupants. At that time, the Tri-State Union's sole source of 6a "Boots" Irwin. a leader of the Tri-State Union, announced during the demonstration that 1 dollar would be paid for each C. I. O. button brought in. °S The question of the International members' responsibility for this is discussed above. The assault on Ely Dry on May 27, 1935 , has been described above. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD funds was the contribution made by the respondents. The Tri- State's records show that over $5,000 was spent in this period for "guards" and squad-car activities. Further, as described above, the pick-handle technique with which the Tri-State Union soon became so closely identified, made its first appearance on May 27, 1935. Just before that demonstration, Joe Nolan, Tri-State Union officer, had directed those present to the Picher schoolhouse where the pick- handles could be obtained. These pick-handles did not belong to the individual miners, although they were thereafter kept by the Tri- State Union members and used by them. Since the evidence shows that approximately 4,000 individuals participated in the pick-handle parade of May 27, 1935, and that the Tri-State Union had no funds other than those supplied by the respondents, the inference is in- escapable either that the pick-handles were bought by the Tri-State Union with the respondents' funds or that the operators in the dis- trict, including the respondents, directly furnished the pick-handles. Thus we find that the respondents in effect did, directly or indirectly, furnish the weapons for the pick-handle parades. Further, there was direct participation in much of the Tri-State violence by ground bosses, foremen, and other supervisory officials of the respondents. Martin C. Forrest, a witness for the Board, testified that Oscar Bailey and Newt Keithley'were present in the mob demonstration of April 11, 1937. Other Board witnesses identified William DeWitt cs as having been present on April 11, armed with a pick-handle and participating in the beatings which occurred. Joe Newby and James Shaw were also present. The respondents are even more directly related to the April 11 demonstration through the undenied activities of Ray O'Dell, ground boss of the respondent Mining Company's Mary N. Beck mine. On April 10, 1937, the day preceding the Tri- State Union's demonstration, O'Dell directed the employees working under him to quit 15 minutes before the usual closing time and go to the Beck office to collect their checks. At the office, about 100 employees of the respondent Mining Company had gathered. O'Dell called these. men together on company property, mounted a truck, and addressed the crowd, stating, "There is, I suppose you fellows all know, there is to be a meeting in Picher tomorrow. It is that damn thing, we thought we had it whipped, coming back at us. How many of you fellows here have bought something that you want to pay for? There is going to be a meeting at the Blue Card hall tonight, and I 0' The respondents contend that DeWitt was not a supervisory employee. The evidence shows, however, that on May 8. 1935, he was ground boss at the respondent Mining Com- pany's Tulsa Quapaw mine and a "cokey herder" or shoveler foreman thereafter. EAGLE-PICHER MINING & SMELTING COMPANY 765 want all of you men that live around here close to be there." At the same time O'Dell announced that there would be a Tri-State Union meeting that night , and a second one the following day. He assured the employees that "There will probably be plenty of tooth picks",, there, if anybody wants one ." This meeting occurred on company time and property . We find that through O'Dell, for whose actions they are responsible, the respondents authorized and urged their employees to participate in the anti -International demonstra- tions of April 11, 1937. Finally, we hold that the respondents are, by the very nature of the Tri-State Union and its relations to the respondents , responsible for the activities of that Union. These are not sponstaneous and isolated instances of individual violence. The Tri-State Union, as described above, was, created not for constructive purposes of col- lective bargaining but in order to break the strike and thereafter to disrupt and defeat the International ; it was the creature of the respondents and other operators , used to realize their anti -Interna- tional purposes . Through the respondents ' financial and other sup- port the Tri-State Union gained its initial impetus, and the means for its continuance . The Tri-State Union's consultation and cooperation with the local operators on matters of policy have been described. Further, the very administration of the Tri-State Union, and the conduct of its official spokesman, the Blue Card Record, rested in the hands of the executive committee , composed of Mike Evans, who was closely allied with the respondents , and of two or three of the respondents' supervisory officials. Under these circumstances, we find that the Tri-State Union, in its anti-International activities was acting on behalf of the respondents and as their agent . Therefore, independently of the reasons discussed in the prior paragraphs, we hold 'that the respondents were and are responsible for the conduct of the Tri-State Union, and for the violence committed by it. We find that the rspondents dominated and interfered with the formation and administration of, and contributed financial and other support to , the Tri-State Union, and thereby interfered with, re- strained, and coerced their employees in their exercise of the rights guaranteed in Section 7 of the Act. We further find that the re- spondents , through their agents, authorized , encouraged and par- ticipated in violence and other lawless acts in order to prevent the International from retaining members, holding meetings and func- tioning on behalf of its members, and that thereby the respondents have interfered with, restrained , and coerced their employees in their exercise of the rights guaranteed by Section 7. 01 The record shows that "tooth picks" were pick-handles. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) The respondents and the Blue Card Union 67 Immediately following the decisions of the Supreme Court of the United States on April 12, 1937, sustaining the constitutionality of the Act, the Tri-State Union took steps to affiliate itself with the American Federation of Labor. The precise details of the origina- tion of the plan to affiliate with the A. F. of L. do not appear from the testimony of Evans and Hickman. Whence came the original suggestion is not apparent. Hickman testified that at a regular Tues- day meeting of the executive committee, "the executive committee authorized Mr. Evans and Mr. Norman to make overtures to the American Federation of Labor for affiliation" 68 The .authorization was acted upon with dispatch. On April 14, 1937, Evans and Norman met with G. Ed Warren, A. F. of L. representative of Tulsa, Oklahoma, and a written agreement was entered into between the Tri-State Union and the American Federation of Labor, as follows : WHEREAS, The Tri-State Metal Mine & Smelter Workers Union, an independent labor union, desires to become affiliated with the American Federation of Labor, and the American Federation of Labor has agreed to accept the members of said organization upon the following terms and conditions : One. That upon affiliation the jurisdiction of the transferred members from the Tri-State Metal Mine and Smelter Workers Union shall be vested in the American Federation of Labor. Two. The Tri-State Metal Mine and Smeltert.Wor_kers.Union. agrees to accept affiliation with the A. F. of L. through a Federal Charter to be issued by the American Federation of Labor. Three. All Working contracts now in force between the Tri- State Metal Mine & Smelter Workers Union and the owners and operators of the mines and smelters in the Tri-State district, to remain in full force and effect until such time as new agree- ments can be negotiated and no strikes will be called or cessation °7 As previously described, the Tri-State Union was generally known and referred to as the Blue Card Union. We have used the term Tri-State Union only for purposes of conven- ient designation and terminological distinction. es Although the minutes of the executive committee are otherwise complete and in evi- dence, the minutes during the period in question are missing , this apparently due to the destruction of Tri-State records during the hearing. Glenn Hickman had been directed by the Trial Examiner to bring the records to the hearing . Hickman was reluctant but finally brought the records to the building where the hearing was being held, keeping them in his car, which he had locked , and offering to produce each specific item as called for. He was then directed to bring in the entire mass. Hickman returned to the bearing with the announcement that the car had been stolen . Testimony of a detective who investigated this incident disclosed that Hickman 's car had been found the following . day.;but .t.hat it had, been burned , destroying all the records. The detective 's testimony established that the car had been fired from inside , and that the outside had been damaged only by the heat. Hick man was able, nevertheless, to procure copies of some of the records. EAGLE-PICHER MINING & SMELTING COMPANY 767 of work be allowed for violation of existing contracts without the consent of the American Federation of Labor. Four. It is further agreed and mutually understood by and between the parties hereto that the preliminary organization expense of affiliation with the American Federation of Labor shall be borne by the Tri-State Metal Mine & Smelter Workers Union. This agreement was signed by Evans and Warren. Evans was vague in his testimony concerning this agreement and the subsequent steps taken. He simply testified that "sometime in April or May" 1937, the Tri-State Union "dissolved." In any event, the Blue, Card Record of April 16, 1937, announced : Blue Card Mass Meeting Called Important Session to be held Sunday at Fair Grounds, Miami. The greatest protest demonstra- tion against the C. I. O. ever to be stated in the United States will take place at 2 o'clock ... Climaxing a week of labor disturbances of electric tension, the executive committee announce the mass meeting of blue card members for the purpose of ratifying the action of the committee.0° "In my opinion," spoke Mr. Norman, "it will be necessary to affiliate with some strong national organiza- tion in order that we might protect ourselves against the ravishes of John L. Lewis and his Committee for Industrial, Organization." On April 18, 1937, the scheduled mass meeting of the Tri-State Union was held at Miami, with approximately 6,000 persons present. A copy of the minutes of this meeting, introduced into evidence by the respondents, describes the proceedings as follows : Meeting called to order ... by Joe Nolan, president of the Picher, Oklahoma local, who gave the purpose of the meeting as a gathering of more than the necessary two-thirds of the total membership for the purpose of ratifying or rejecting the entrance into the American Federation of Labor by the Executive Com- mittee at a conference held in Tulsa .. . Mr. Nolan. 70 introduced Attorney Norman, who delivered an address, explaining the actions of the Committee, setting out the facts which, in the opinion of the leaders, made affiliation with some national labor organization imperative, and asking for complete dissolution of the Tri-State Metal Mine and Smelter Workers Union and immediate preparatory steps for organization of a Union affiliated with the American Federation of Labor. 00 The announcement did not mention what the "action" was, and all mention of the A. F. of L. Is omitted. 70 Evans testified that he introduced Norman "to discuss the details" of the action being taken. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Secretary Treasurer Hickman, in this connection, introduced the following resolution: WHEREAS the facts set out in Mr. Norman's address prove con- clusively that it is no longer advisable for the Tri-State Metal Mine and Smelter Workers' Union to attempt to function as an independent Union, and WHEREAS the American Federation of Labor, being more nearly in accord with the purposes and policies of the Tri-State Metal Mine and Smelter Workers' Union, than any other national labor organization, and WHEREAS ground work for affiliation of the Tri-State lead and zinc workers with the American Federation of Labor has already been laid by officials of the Tri-State Mine and Smelter Workers' Union, be it therefore RESOLVED That the Tri-State Metal Mine and Smelter Work- ers' Union take this opportunity and means of completely dis- solving itself as provided in Section 2 of the Constitution, and that full authority be vested in the Executive Committee for organizing a new Union in conformity and affiliation with the American Federation of Labor, and be it'further RESOLVED that all funds and property of the Tri-State Metal Mine and Smelter Workers' Union be held in trust by the Execu- tive Committee until such time as a new Union affiliated with the American Federation of Labor has been organized, at which time said Executive Committee shall turn said funds and prop- erty fully intact over to officers of the newly organized Union. Following a lengthy discussion of the matter before the house, Mr. Nolan called the question. Resolution adopted by unani- mous vote of the approximate 6,000 members present. Testimony of witnesses who attended this meeting emphasizes certain features of the proceedings not mentioned in the minutes. Charlie Edward King, a witness for the Board, testified that he at- tended the meeting and that "Norman said the Wagner Bill wasn't constitutional and `we didn't expect that it would be passed but as they did pass it we had to do something' and that, 'As the Wagner Bill was upheld we have to do something, but we will yet be Blue Carders. We will print a sign A. F. of L. and Blue Carders across that sign and hang it in front of our hall so that people will know that we are yet Blue Carders and these other men had just as well leave town."' After Norman read the A. F. of L.-Tri-State Union agreement, Nolan said, "Every man and woman that agrees to this agreement, arise to your feet." King testified that "they stood up by the thousands." Then after a whispered conference with Nor- man, Nolan announced, "Anybody that is contrary to this agreement EAGLE-PICHER MINING & SMELTING COMPANY 769 stand up and get knocked down, please." No one stood up.71 King testified that although the meeting lasted for 4 hours, only 45 min- utes or an hour were devoted to union affairs since the speeches were "very short." The remainder of the meeting was devoted to orches- tra music. John McAlister, who was a Tri-State member during this period and who attended this meeting, corroborated King's testi- mony. McAlister testified that Norman spoke and said that "the blue card union can't stand the Wagner Act and it had to be changed and affiliate with someone else," but that "it wouldn't change the rulings nor the officers nor nothing of the company, that they would go on just the same as it had." Nolan then arose and called for all in favor of affiliation to stand. After this, Nolan announced, "All you Goddam - - that isn't in favor stand up and get knocked down." Jess Thompson who also attended the April 18 meeting testified that Norman said that "it would still be the Blue Card Union" and that "they wouldn't change their way of doing things." Norman, according to Thompson, assured the meeting that Evans and Nolan would continue to act as president and vice president, respectively, and that the Union "would still fight the International." Thompson also testified that Nolan stated, "All those that don't want to join it stand up and get knocked down." Finally, H. D. Kelley, who was present at the meeting, testified that it was announced 72 that the men had come to ratify "going into the A. F. of L." that "they would keep the same officers and same set-up under the A. F. of L." and that it was then stated that "All of them that is not in favor of it stand up and see how quick you are knocked down." All these witnesses testified they heard nothing about dissolution. The respondents called no witnesses to testify concerning this meet- ing and we find that it occurred as testified to by King, McAlister, Thompson and Kelley. On April 24, 1937, the A. F. of L. granted separate charters to Federal Labor Union No. 20576, Picher, Oklahoma, Federal Union No. 20577, Joplin, Missouri, and Federal Labor Union No. 20578, Galena, Kansas. No further steps were taken until May 16, 1937, when representatives of the A. F. of L. and Evans and Hickman, as "trustees of the assets of the former Tri-State Union" held a confer- ence at Kansas City, Missouri, and entered into an agreement provid- ing that a convention of delegates from the Federal Labor Unions would be held immediately in Picher for the purposes of electing an executive committee and officers; that a constitution and bylaws be 71 As described above, Nolan was popularly known and referred to in the Blue Card Record as "The Pick-Handle King" by virtue of his leadership in the "pick -handle" parades. 72 Kelley could not get into the grounds and listened to the proceedings through a loud- speaker. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drawn up; that thereafter a temporary certificate of affiliation with the A. F. of L. be issued; that such certificate should not be with- held because of any decision of the new union to be formed by the delegates to take over "the officers, property and assets of the Tri- State Union"; and that any additional locals thereafter organized should be governed by the new union in the same manner as the locals at Picher, Joplin and Galena "are now governed and controlled by the said Tri-State Union." Pursuant to this agreement, five delegates were elected from each of the three Federal Labor Unions. These delegates were elected by the members of each local. Hickman testified that none of the mem- bers of the executive committee were elected. Hickman admitted, however, that some of the executive committee "may have been" at the convention "unofficially." The convention, held on May 20, 1937, at Picher, was presided over by Roy Wood, a delegate, who was a foreman of the respondent Lead Company's Joplin plant. Wood opened the convention by "explaining that [its] purpose . . . was to formally organize a new union in conformity with the A. F. of L., and gave a brief history of the facts leading up to the meeting." The delegates decided to call the new union the "Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers." The delegates next selected as the new executive committee the same 12 men who con- stituted the executive committee of the'Tri-State Union. The com- mittee of the new union included, therefore, Oscar Bailey, Newt Keithley and Roy Wood, who succeeded William DeWitt. These three held supervisory positions with the respondents. Finally it was moved that "all funds and property formerly belonging to the Tri- State Metal Mine and Smelter Workers Union, now held in trust, be deposited and assigned over to the duly elected officers of the new union or the Board of Trustees thereof." Shortly after May 20, 1937, the A. F. of L. issued a temporary certificate of affiliation to the Blue Card Union. On June 16, 1937, the A. F. of L. issued a formal charter. Meanwhile, on May 20, im- mediately following 'the delegates' convention, the executive com- mittee elected new officers. Evans was continued as president; Ray Morris, a leader since the back-to-work movement and a member of the executive committee throughout, was chosen as vice president; and Hickman was reelected as secretary-treasurer. Shortly after the convention, Ray Morris dropped out and Joe Nolan was elected by the executive committee to succeed to the vice presidency. The respondents urge that by the steps leading to affiliation de- scribed above, the Tri-State Union ceased its existence, replaced by a wholly new organization. This contention is wholly unimpressive. To accept it would be to blind ourselves to the realities of the situa- EAGLE-PICHER MINING a SMELTING COMPANY 771 Lion. The evidence fair to establish that any substantial change in the Tri-State Union was accomplished by these formalities. Indeed, as described above, the sole argument made by the Tri-State leaders who engineered the process of "reorganization" was that the step was necessary to the continued existence of the Tri-State and that by affiliation, the Tri-State would in no way change. As stated in the editorial columns of the Blue Card Record of May 7, 1937: Technically we are now operating under the general policy laid down by the American Federation of Labor; really we are still the Blue Card Union 73 in every respect and as such we intend to remain. If the recently negotiated affiliation means the sacrifice of a single iota of confidence we have established with the employers of this district, it is better that we repent of our action and fight to the end as an independent union. The history of the Blue Card Union subsequent to April 18, 1937, gives conclusive indication of the fact that the old Union continued with little change. No real attempt was made to change the identity of the Tri-State Union and the indicia of such continuance are many. At all times; before and after April 1937, it was known as the Blue Card Union. Before April 1937, the Blue Card Record contained on its first page a seal which bore the date "A. D. 1935,1174 and the legend, "Official Publication of the Tri-State Metal Mine & Smelter Workers Union." It was not until November 19, 1937, the week after the Board had issued its complaint, that the Record's seal finally omitted the date 1935, while the name of the Tri-State Union remained at least until October 15. Only the words "affiliated with the A. F. of L." had been added on May 6, 1937. Similarly, the ledger used by the Tri-State Union continued in consecutive pagina- tion without any break to indicate a change of unions. One hundred and nine deposit slips, representing deposits from April 17 to Septem- ber 9, 1937, of union monies in the First State Bank of Picher are in the name of the Tri-State Union.75 Checks dated as late as June 28, 1937, were signed by Hickman over the designation, "Tri-State Metal, Mine and Smelter Workers Union." Dues books, applications and other organization papers continued throughout this period to be distributed under the name of the Tri-State Union. The respondents, however, sought to minimize the significance of these physical indicia of continuity by adducing through cross-ex- +s See footnote 67 above. 74 This date on the seal, as Evans testified , represented the date when the organization was established. 7' The assets of the Tri-State Union, amounting to several thousand dollars, were at first, according to Hickman, turned over to Evans, Hickman, and the executive committee as "trustees." Thereafter, on organization of the Blue Card Union, the "trustees " passed the- assets to the latter Union. 0 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 0 amination of Hickman's testimony that at the time the Tri-State Union affiliated with the A. F. of L., the Tri-State Union had on hand approximately $4,000 worth of stamp books, ledger, sheets and other supplies, and that as a matter of economy the Blue Card Union continued to use such supplies. Economy would, however, scarcely account for the failure to omit the date on the Blue Card Record's seal, nor the continuance of the name of the Tri-State Union thereon, particularly in view of the fact that the words of affiliation were added. Hickman's testimony, moreover, is further robbed of its force by the testimony of Gerry A. Manning, vice president of the Joplin Printing Company, the company which did the printing for the Tri- State Union. Manning testified, and we find, that on May 5, 1937, 3 weeks after the "dissolution and affiliation" meeting, the printing company received an order for 50 books or 10,000 duplicate sets of dues receipts bearing the inscription "Tri-State Metal, Mine & Smelter Workers' Union." This item was accepted and paid for without complaint. Manning further testified that on September 2, 1937, the printing company received an order to reword the heading of the Blue Card Record to "The Official Publication of thel Blue Card Union of Zinc and Lead, Mine, Mill & Smelter Workers," and that the price of this job amounted. to $1.23. The failure to make this change before can scarcely be attributed to reasons of "economy." Finally Manning testified, and we find, that it was not until Novem- ber 15, 1937, after the Board's complaint was issued, that the Blue Card Union, through Kelsey Norman, ordered the printing of a new constitution and bylaws.76 In light of this testimony, we cannot accept the reasons assigned by Hickman for the identity of the physical indicia used by the Tri-State and Blue Card Unions. Evidence other than these physical indicia shows that the Blue Card Union was but the continuation of the Tri-State Union and that it was so regarded by its officers and members. Thus on June 4, 1937, after the purported dissolution, the Blue Card Union held a "second anniversary" picnic at which Evans spoke in regard to the Union's 2 years of existence. Minutes of the meetings of the Blue Card locals, dated through September 1, 1937, handwritten by the local recorders, bore the written name of the Tri-State Uhion.77 Service of the Board's complaint on the Tri-State Union on Novem- ber 8, 1937, was accepted and acknowledged in the offices of the Blue Card Union by Roxie Bradley, Blue Card Union stenographer. It is also clear that the purported dissolution did not actually change the policy, attitude or methods of the Tri-State Union. For example, the minutes of a local Blue Card Union meeting on April 40 Only 250 copies of the constitution were ordered. "Copies of the minutes , typewritten in Hickman's office, were changed to substitute the name of the Blue Card Union. EAGLE-P1CI[ER MINING & SMELTING COMPANY 773 21, 1937, disclose that the application for membership of Luther Goff was rejected because of the fact that he had been absent at the meetings held during the 2 preceding weeks. Thus it appears that membership. in what purported to be a new organization was refused because of failure to attend meetings of a prior union allegedly dissolved .711 Further evidence of the continuity of attitude is con- tained in the Blue Card Record's editorial of June 25, 1937, an edi- torial referring to "we . . . operators" as described above. Nor did the Blue Card Record diminish its bitter attacks on the C. I. 0., the International or even, on occasion, organized labor in general. Evans' prevention of the scheduled International meeting in Bax- ter Springs on July 25; 1937, has also been described above. Finally, the evidence shows that foremen and other supervisory employees were, at least for a time, permitted to remain members of, and active in, the Blue Card Union. Thus, for example, the minutes of the executive committee meeting of September 14, 1937, report : Roy Wood 7° was instructed by the Committee to notify all foremen at the Eagle-Picher Smelter at Joplin was to keep on' paying their dues until such time as given exemption by the Committee. As stated above, the executive 'committee elected by the delegates on May 20, 1937, was identical with the Tri-State Union's executive committee, with the exception of Wood's substitution for DeWitt. Keithley and Bailey, the respondent Mining Company's ground bosses, continued to sere. on the committee. Sometime during the summer of 1937,-and after the affiliation '80 the ground bosses dropped out of the executive committee and were replaced by ordinary em- ployees."' However Hickman testified, and we find, that the execu- tive committee itself chose the successors of those who resigned. 112 The management of the Tri-State Union thus virtually perpetuated itself, and the respondents through their supervisory employees on the committee participated in such choice. Finally Mike Evans, whom we have found to be an. operator closely connected with the 18 The minutes of the executive committee meeting of September 7, 1937, state : "William Henry Slater, whose application for membership had been held up because he had worked in the mines for the past two years without , joining the union, came before the committee to explain this circumstance and attempted thereby to get a Blue Card." [Italics supplied.I a0 As we have found above, Wood himself was one of the respondents ' supervisory employees. 80 Hickman placed the dates at "a few months " before the hearing and shortly after the May 20 convention. s1 This was the same period at which the various supervisory .employees of the respond- ents who testified set the date of their "voluntary" resignations from the Blue Card Union as described above. . ffi The minutes of the executive committee meeting of June 15, 1937 , report that Bailey and Detchemendy resigned from the committee . "Both resigning members were prevailed on to attend next week's regular meeting to vote on the incoming members . . . This referred to the new committee members. 774 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD respondents, and representing their interests throughout, remained as president of the Blue Card Union, chosen, as described, by the executive committee, until November 11, 1937. On November 11, 1937, immediately after the Board issued its complaint in the case, Evans telegraphed William Green, president of the A. F. of L., and requested that immediate action be taken on Evans' resignation. On April 24, 1937, Evans had offered his resignation to Green, but no action was taken thereon until the subsequent wire om-November. 11, 1937. The executive committee chose Joe Nolan 113 as Evans' successor. Conclusions with respect to the relationship between the Tri-State Union and the Blue Card Union From the events described above, and from the preceding findings, we think it is clear that for all practical purposes, the Blue Card Union was identical with and a continuance of the Tri-State Union. Other than in the resolution read by Hickman at the meeting on April 18, 1937, there is no evidence that it was ever called to the attention of the members of the Tri-State Union that. there, was supposed to be an actual dissolution. The Blue Card Record during this period mentioned only the question of affiliation, not dissolution. Indeed, the only witnesses who testified concerning the meeting on April 18 testified that they recalled nothing about dissolution. From analysis of the evidence concerning the steps taken to replace the Tri- State Union by the Blue Card Union, we cannot escape the conclusion that the process was engineered and completed not by the members themselves but by Evans, Norman, Hickman and the executive com- mittee; representing the respondents and other operators, as a desper- ate effort to preserve the Tri-State Union. The rank and file employees took no part in the "reorganization" until it had become a fait accompli through the agreement of April 18, 1937. Even then, their participation was formal at best. At a public meeting, open to members and non-members alike, they were presented with the "choice" of approving by rising vote what had already been achieved. Only by way of afterthought were the members presented with an opportunity to reject the agreement, and this alternative was one which, under the circumstances, they could scarcely choose. There is nothing in the evidence to show that members individually had an opportunity to join or refuse to join the "new" Union, or that new applications or membership cards were presented to them. Member- ship in the Tri-State Union, willy-nilly, brought membership in the 83 As described above, Joe Nolan also operated a mine at the time of the strike in May 1935 . Hickman testified at the bearing that he did not know what arrangement Nolan had made with respect to his mine but that Nolan devoted no time to it. h.H_GLE-PICHER MINING & SMELTING COMPANY 775 Blue Card Union. As repeatedly stated by the Blue Card Record and by Norman, the process was one to perpetuate unchanged the Tri-State Union. Under such circumstances, we are compelled to conclude that mere observance of certain formalities, and affiliation with a national labor organization, without more, are insufficient to change the character of a company-dominated union or to invest such a union or the respondents, with iminunity. At no time did the respondents with- draw from its relations with its creature; at no time was it announced that the Tri-State Union was ended. Had the Tri-State Union "re- organized" as described above, omitting only the process of affiliation, it would be clear that it had not purged itself of its company-domi- nated characteristics. We cannot adopt a different rule because of the mere fact of affiliation. We conclude, therefore, that the Tri- State Union, its policies, its members, and its assets were transferred bodily into the Blue Card Union, and that the Tri-State Union, there- fore, has persisted to the present as alleged in the complaint. We conclude further that the affiliation was itself a part of the plan to perpetuate the effect of the respondents' illegal campaign. We have already found that the Tri-State Union was created and supported by the respondents, that the respondents, through their representatives in the Tri-State Union's offices and committees, par- ticipated in and dominated the administration of the Tri-State Union, and that the Tri-State Union was itself an agency of the respondents and other operators. To the extent that we have found that the respondents controlled the Tri-State Union, they also man- aged and controlled the "transformation" into the Blue Card Union; to the extent that we have found that the respondents were repre- sented by Evans and by the Blue Card Union's executive committee after April .18, 1937, the respondents dominated the Blue Card Union; and to the extent that we have found that the Blue Card Union perpetuated the respondents' policies previously pursued through the Tri-State Union, the Blue Card Union represented the respondents. We find, therefore, that by their participation in the formation and administration of the Blue Card Union through membership of its supervisory officers and employees, and through other represen- tatives, in the Blue Card Union, and the executive committee thereof, the respondents have dominated and interfered with the formation of,' and, contributed support to,84 the Blue Card Union and have thereby interfered with, restrained, and coerced their employees in their exercise of the rights guaranteed in Section 7 of the Act. 84 Since we have found the Blue Card Union to he a continuance of, and identical with, the Tri-State Union , the financial and other contributions made by the respondents to the latter union accrued to the credit of the Blue Card Union also. 247333-40-vol. 16-50 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Discriminatory refusals to reinstate The complaint alleges that at all times since June 5, 1935, the re- spondents have refused employment to those persons employed on May 8 who went out on strike and were International members, and that since June 5, 1935, the respondents have "required membership in the Blue Card Union as a condition for the tenure of employment and ... have refused to reinstate employees ... for the reason that said employees are not members of the Blue Card Union." 85 The respondents, in their answers, deny that they have so discriminated, or that they have refused employment to any employees after the strike because of their membership in or activities in behalf of the International, or that they have required as a condition precedent to obtaining or retaining employment membership in the Tri-State or Blue Card Union. The relevant evidence on the issue can most con- veniently be discussed with reference to three chief questions : (1) the execution and existence of a contract between the respondents and the Tri-State Union; (2) the direct pressure, coercion, and intimida- tion exercised by the respondents upon their employees to force them to abandon the International and join the Tri-State or Blue Card Union; and (3) the statements of the respondents' supervisors con- cerning the conditions of employment imposed. (1) The agreement between the Tri-State Union and the respondents Paragraph 35 of the complaint alleges that "On or about June 5, 1935, the respondents entered into an agreement with the Blue Card Union whereunder they agreed to prefer in hiring in the Tri-State area such persons as should be members of said organization." In their answer docketed on November 17, 1937, the respondents, while denying many of the allegations of the complaint, admitted that they agreed to employ such members of the Blue Card Union as might be necessary to operate said properties, all of which, however, was prior to the effective date of the Wagner Act ... In their amended and substituted answer, docketed on November 22, 1937, the respondents : admit that on the 8th day of June, 1935, they entered into an agreement with the Tri-State Metal Mine and Smelter Workers Union, which agreement was in all respects lawful. 83 These allegations constitute the "Second Cause of Complaint ." Coupled with these allegations in this cause and as a part thereof, the complaint also alleges the facts con- cerning the strike, the back-to-work movement, and the respondents' relations to the Tri- State Union . We consider that such events are an integral part of the issue concerning discrimination , and we have separated them here solely for the purposes of convenience. EAGLE-P[C'HER MINING & SMELTING CQMPANY 777 This answer was sworn to by George Potter, vice president of the respondent Mining Company, and A. C. Wallace, attorney for the respondents.81, In their second amended and substituted answer, dated December 4, 1937, the respondents repeated the admission of the execution of the agreement. This answer was also sworn to and verified by Potter and Wallace. Finally on April 7, 1938, shortly before the close of the hearing,"' the respondents amended their answer so as to state that the respondent Mining Company had entered into such an agreement but that the respondent Lead Com- pany "at no time entered into any agreement of any kind or char- acter with said union." This amendment was also sworn to and verified by Potter and Wallace. The agreement in question, dated June 8, 1935, is as follows : To the Officers and Executive Committee of the Tri-State Metal Mine and Smelter Workers Union : The undersigned Employer is familiar with your efforts in organizing the actual workers in the Tri-State field for the pur- pose of dealing with the employers, and in appreciation of your doing so, hereby agrees : That in its operations in this district, it will hereafter, so far as practicable and to the greatest extent possible, employ ONLY members of your organization in the following manner : 1. Ability and other personal qualifications being equal, we will in good faith give preference in employment in all cases to members of your union, deviating from this only in case of oblh gation to a prior employee, or substantial decrease .in efficiency in our operations. In as much as [it is] possible, some of our old and trusted employees may in good faith not wish to be a member of ANY labor organization, we do not feel we should be obligated to employ members of your organization exclusively; 2. While of course we must retain the right in every instance to meet with any one or more of our actual employees to discuss conditions or matters relating to employment or working condi- tions, we hereby-agree to meet with any representative or com- mittee from your union, bearing proper credentials, to discuss any matters whatsoever pertaining to employment or working conditions, and to recognize and meet with your representative to the exclusion of all other organizations; and will endeavor to adjust matters which they may bring before us. H° As described below. Potter was directly related to the negotiations and events during the period in question. 87 At some time previous, the respondents had moved orally to amend in this respect. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In other words, subject to the above, we hereby recognize your union as the bona fide organization of employees in the Tri- State district, for the purpose of collectively bargaining with us as employer. EAGLE-PICHER MINING & SMELTING COMPANY, (Signed) GEo. W. PoTTER, Vice President. Potter, who was in charge of labor relations of both the respond- ents. during. this period, and who was representative of the respond- ents in the early conferences with Evans, in the financial dealings with the Tri-State Union, and in the negotiation of this agreement, was not called upon by the respondents to testify, and no explanation for his absence was offered. Several considerations impel us to the conclusion that this agree- ment was a device intended by the respondents to exclude Interna- tional members from employment and to avoid any obligation to deal. with the International. Under all the circumstances, the agreement was plainly not a bona fide collective bargaining contract. Camp- bell admitted that at no time was any inquiry made concerning the number of employees represented by the Tri-State Union.' In con- trast, as described in Section III A above, when the representatives of the International had, shortly before, attempted to bargain with the respondents, the latter had placed every obstacle in the path of the International, raising both technical and non-technical objections to the International's right to represent the employees. The evidence shows that up to the time of the strike, the respondents had pro- claimed their insistence upon maintaining an "open shop." Yet on the same day that Evans and Norman presented an agreement which violated the very principles to which the respondents had only a short time before protested adherence, Potter signed such an agree- ment and agreed to deal with the Tri-State Union "to the exclusion" of all other labor organizations. Campbell, the only witness called upon by the respondents to testify concerning the execution of this agreement, and himself a member of the Tri-State Union, sought to minimize its significance through testimony that it in no way applied to those workers em- ployed by the respondents on May 8, 1935. He testified that the contract as presented by Evans and Norman restricted the respond- ents in their right to employ all former employees regardless of union affiliation, that the respondents protested vigorously at any at- tempt thus to restrict such right, and that accordingly the respond- ents altered the contract so as to exclude from its operation all former employees. Campbell's testimony concerning the respondents' earnest negotia- tions and anxiety on behalf of all former employees is refuted by L EAGLE-PICIIER MINING & SMELTING COMPANY 779 comparison of the agreement in question with the agreement be- tween Mike Evans as representative of the Tri-State Union and him- self as operator of a mine known as the Craig lease, where he em- ployed some 35 workers. This agreement, dated June 4, 1935, 4 days before the respondents' agreement, is precisely identical with the respondents' agreement. Only the name of the employer and the emphasis on the words "only" and "any"-which in the Evans agree- ment appear in small letters-vary from the respondents' agreement. We cannot presume that Evans, in dealing with himself, indulged in extensive collective bargaining or raised vigorous objections to the proposals he was submitting to himself. In the light of the identity :between the respondents' agreement and Evans' agreement, we must reject Campbell's claim that he or Potter negotiated at all concern- ing, or made alterations in, the proposed contract. Further, we can- not accept Campbell's claim that the contract either was intended to or actually did exclude all former employees from the requirement of membership in the Tri-State Union. The. agreement exempts only "some of our old and trusted employes who may not wish to be a member of ANY labor organization." It is abundantly clear that the respondents did not consider International members as falling within either the category of old and trusted employees or within the category of those who were not desirous of joining any labor organization. Campbell, in subsequent testimony, admitted that lie considered the contract to be "a closed shop or preferential contract." Thus at the outset serious doubt is cast not only upon the bona fides ,of the contract but, more particularly, upon Campbell's testimony concerning it. Mindful of these circumstances, we turn to the respond- ents' contention that the contract was never invoked and that it was considered inapplicable after July 5, 1935, when the Act became effective. Again the respondents' chief witness on the issue of the lapse of this agreement was Campbell. Campbell testified that when the mines re- -opened, "the question of preference never arose" and that as far as he was concerned, no preference was ever extended to members of the Tri-State Union. He further testified that on or about July 18, 1935, Joe Newby, superintendent and general manager of the Galena Smelter, asked Campbell about the contract, and that Campbell advised Newby "to forget about it and pay no attention to it" because it had been -"kicked out by the Wagner Act" and that it "didn't affect former em- ployees." Newby testified that he had heard rumors concerning the ex- istence of the contract, and that he "was kind of up in the air wonder- ing what the devil it was." Newby testified that he accordingly inquired of Campbell, who told him that "at one time there was a contract" but 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that "it didn't apply to any former employees, and that the Wagner Act went into effect and kicked it out." 88 The only other evidence adduced by the respondents to show that the agreement had never been applied was the testimony of the various supervisory employees that they have never heard of the contract. Niday, Ritter, and Frudenberg testified that they had been unaware throughout that any such agreement had been entered into. Campbell testified that he never was aware of the general belief that a contract existed. We are unable to accept the credibility of these disclaimers of knowledge. Frudenberg and Campbell were themselves members of the Tri-State Union. Niday admitted that he had discussed with both Frudenberg and Ritter the question of whether employees were required to join the Tri-State Union. Each admitted that he read the Blue Card Record, although each denied having seen announcements Rs therein on August 2, 1935, and thereafter, that the Mining Company had signed a closed-shop contract with the Tri-State Union. Finally, other supervisory employees testified to the widespread belief that such a contract did exist. Hallows "heard rumors" and believed that the respondents had signed a contract agreeing to employ only members of the Tri-State Union at the mines. He testified he made no inquiries concerning it. Newby testified that "it was all over town" that there was a contract between the respondents and the Tri-State Union. We find that the respondent Mining Company entered into a virtual closed-shop contract with the Tri-State Union intended to exclude and actually excluding International members from employ- ment, and that the respondents' supervisory employees were aware of the agreement. As described above, the respondents contended, through Campbell's testimony, that in any event the contract ceased to exist after July 5. 1935. In view of the widespread belief in the area that there was such a contract, described both above and below, and in view of the severe restrictions the contract placed on employees' free right of self-organization, we hold that the respondents were, on and after July 5, 1935, under an affirmative duty to cancel the agreement and to, announce cancellation. In this duty the respondents wholly failed. Campbell admitted that he never notified the Tri-State Union that the contract was no longer operative. Except for the conversation between Newby and Campbell, described above, the record is devoid The virtually identical phraseology of these two witnesses ' description of a casual conversation occurring about 3 years before is probably explained by the fact that Camp- bell, who testified after Newby on this point , was present throughout the bearing since, as an officer of the respondents , he was exempted from the general rule excluding all those who knew they were to be witnesses. so These announcements are discussed below. We do not believe that in reading the Blue Card Record, the respondents' officials and supervisors happened to miss such important material vitally concerning their own employees. EAGLE-PICHER MINING & SMELTING COMPANY 781 of evidence that any steps were taken to announce the alleged cancel- lation of the contract. On the contrary, the evidence shows that on. and after July 5, 1935, the respondents made certain statements, and authorized other statements, that the agreement was in full force and effect. Thus Ora L. Wilson, vice president of the International, testi- fied that shortly after °0 July 5, 1935, he conferred with Potter con- cerning a settlement of the strike and a return to work, and that Potter refused, stating that it was "too late" since the respondents already had a contract with the Tri-State Union. A' few weeks later, Wilson testified he renewed the offer to Potter and was met with the same reply. Campbell, who was present at the conference, testified that he could not recall its details. Potter was not called upon to testify- We find that Potter stated, after July 5, 1935, that the contract was still in existence. Further, the respondents authorized other statements that the contract was still in existence after July 5, 1935. As described above, the Tri-State Union's official publication announced on August 17, 1935, that 95 per cent of the mine operators in the Tri-State area had signed contracts with the Tri-State Union "agreeing to employ blue card men exclusively-which agreement is binding and obligatory for the life of the Tri-State Union." The paper appended a list of the contracting companies and included the respondent Mining Com- pany. A similar announcement was printed in the August 2, 1935, issue of the paper, stating that "Mining companies representing 95 per cent of the Tri-State Production,. composing all of the principal operators in the District . . . have signed contracts with your Execu- tive Committee . . . binding themselves to employ our blue card boys." As stated above, this paper was the official publication of the Tri- State Union. Although it was generally read by their officers and supervisory employees, the respondents took no steps to deny these statements. The respondents, through their supervisory employees serving on the executive committee and through their "adver- tising" contributions to the paper, participated in its publication. Through permitting its distribution within their properties, the respondents indicated their approbation of the paper. We find that the respondents authorized and ratified the statements described above as they appeared in the Tri-State Union's paper. Moreover, the respondents authorized similar oral statements of the continued existence of the contract. As described more fully in the section °0 The transcript of Wilson's testimony , given at the first day of the hearing , records Wilson 's having stated that the conference occurred before July 5. The surrounding testimony given by Wilson indicates this is an error , and later in the hearing Wilson returned to the stand to testify that the stenographer had improperly recorded his testi- mony. At the close of the hearing the stenographer filed an affidavit disclosing . that he had erred in transcribing his notes and that the word "after" should be .substituted for "before." 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD immediately following, Kelsey Norman addressed the employees of the research laboratory and the respondent Lead Company's Joplin plant. During this address, an employee questioned Norman con- cerning the contract. In reply, Norman stated that the "contract gives preference to men belonging to the Union. The contract be- tween the Eagle-Picher Lead Company and the Union is so worded that it includes you." Norman's address was given with the express permission of the respondent Lead Company's vice president. It was given in the plant on company time, without reduction in pay to the workers. We hold that Norman's statements in this respect were approved and authorized by the respondents. Under all the circumstances, we conclude (1) that the respondent Mining Company executed a virtual closed-shop contract with the Tri-State Union on June 8, 1935; (2) that although the contract was signed only by the Mining Company, in actual application, as described below, no attempt was made to distinguish between the respondent Mining Company and the respondent Lead Company in this respect;°1 (3) that, therefore, the contract as written was supplemented by an identical understanding between the respondent Lead Company and the Tri-State Union; (4) that such contract wan intended to and actually did provide that abandonment of member- ship in the International and joining the Tri-State Union were con- ditions precedent to obtaining or retaining employment with the respondents; (5) that such contract was not at any time before or after July 5, 1935, cancelled by the respondents; (6) that such con- tract was stated by the respondents' officers after July 5 to be in full effect; (7) that the respondents, although aware of statements that the contract was still in effect, never repudiated such state- ments; and (8) that the respondents authorized, approved, and rati- fied statements made by Kelsey Norman and the Tri-State Union's official paper that the contract continued in full force and effect after July 5, 1935. We also find that on and after July 5, 1935, the contract was not valid under Section 8 (3) of the Act because made with a- labor organization whose formation and administration had been dominated, interfered with, and supported, by the respondents.92 (2) Direct pressure exerted by the respondents to coerce membership in the Tri-State Union We have described the respondents' participation in the back- to-work movement and in the creation and administration of the 9' As described herein, Potter was at this time in charge of labor relations for both the respondents. 92Cf. National Labor Relations Board v. Stackpole Carbon Company , 105 F. (2d) 167 C. C. A. 2d, 19.39) ; Matter of Kansas City Power 4 Light Company and International Brotherhocd of Electrical Workers, Local Union B-1122, 12 N. L. R. B. 1414, and cases cited in footnote 12 therein.. EAGLE-PICHEE MINING & SMELTING COMPANY 783 Tri-State Union. From such activities of the respondents, it is reasonable to infer that the respondents were vitally interested in forcing their employees to abandon the International and to join the Tri-State Union. Such an inference is fully supported by the evidence. Although the respondents vigorously deny that they required mem- bership in the Tri-State Union as a condition of employment, they called no ordinary employees to testify that they had obtained or retained employment without abandoning their membership in the International or without joining the Tri-State Union. There is not in evidence a complete computation of the number of the respondents' employees who were actually members or non-members of the Tri- State Union. 93 There is, however, evidence of a remarkably high proportion of Tri-State Union members among the respondents' em- ployees. As described above, with the exception of one or two of their highest officers, all of the respondents' supervisory employees were members of the Tri-State Union, most of them having joined at approximately the same time in the fall of 1935. Further, Board Exhibit Nos. 240, 241, and 242 are summaries, compiled by check of all available records by counsel for both parties and by auditors, of information concerning all persons claimed by the International to have been connected with it in any way. Such information in- cluded data as to whether the persons were reinstated by the re- spondents and whether they joined any other union. These exhibits were supplemented by Respondent Exhibit No. 43, a folder con- taining affidavits of many persons claimed to have at any time been represented by the International. These affidavits also show subse- quent employment and other information concerning these men. Ex- amination and analysis of these four exhibits disclose that of all persons listed in Board Exhibit Nos. 240, 241, and 242, 185 were re- employed by the respondents after the strike. Of these, 174 were disclosed by available Tri-State Union records 94 to have joined that ea In the course of his examination of Campbell, the respondent's counsel asked whether Campbell had checked the records of the Tri-State Union with the Joplin smelter's July 5, 1935, pay roll to ascertain how many of such employees were Tri-State Union members. The Board's counsel objected to the question since he had had no opportunity to check on the figures to be presented. He also objected on the ground that prior testimony had shown that immediately on the reopening of the mines and plants, the respondents had employed non-Tri-State members but had thereafter required such membership as a condi- tion of retaining employment. The Board's counsel therefore requested a later pay roll also, against which the Tri-State membership could be checked. The Board's counsel offered to undertake the check of the membership records against the pay roll, and pending such check, the Trial Examiner sustained the objection "at this time." We hereby affirm this ruling:" The pay rolls were notoffeted in evidence again. 14 We do not regard the absence of such notations as conclusive- evidence of non-mem- bersbip, since at best it is only negative. Further, comparison of the affidavits with the memoranda show that in several Instances,. information contained in the former, which were the individuals' own statements, were absent in the latter, which was a mere com- pilation by third parties. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union. Where dates are given for joining the Tri-State Union. and returning to work, the exhibits disclose that the former almost invari- ably precede the latter. Six other persons of the 185 who returned to work signed back-to-work petitions 95 before they were reemployed, although there is no notation that they joined the Tri-State Union. Three other persons who were reinstated did not make out affidavits and no notation of Tri-State membership appears. Since they did not file such affidavits, there is no statement by them concerning whether or not they signed the back-to-work petition. As to the two remaining persons whom these exhibits show to have been re- employed, there is no notation of Tri-State membership and their. affidavits disclose that they did not sign the back-to-work petitions. It appears in both cases, however, that these two men were not and had not been members of the International. Further, there is primary evidence that those persons who did ob- tain employment with the respondents either first became members of the Tri-State Union or thereafter became • members. The only per- sons other than supervisory employees who were employed by the respondents after the strike and who testified were Board witnesses. All were members of the Tri-State Union. Sam Gaskill; who was not a claimant, testified that he returned to work in the paint depart- ment at the Lead Company immediately on the Joplin plant's reopen- ing. He was not a member of the Tri-State Union at the time. Shortly thereafter, however, all employees in the paint department were summoned, during working hours, to attend a meeting in the plant cafeteria where Kelsey Norman addressed the employees con- cerning membership in the Tri-State Union. Gaskill immediately joined 96 This incident is undenied by the respondents. Joseph Mallatt, who obtained employment at the Galena smelter after. the strike, became a Tri-State member immediately thereafter. H. E. Bridges, who obtained employment at one of the respondent Mining Company's mines in April 1937, joined the Tri-State Union shortly before he resumed his work. Timothy Rayon, who was reinstated by the respondent Lead Company on September 9, 1935, had obtained a temporary membership in the Tri-State Union a few days before that date. Olay Dodd resumed employment at the Joplin plant on its reopening immediately after having obtained a temporary blue card-evidence of temporary membership in the Tri-State Union. Albert Plummer was reinstated at the respondent Mining Company's Ohio mine on March 10, 1937. In the same month he had become "The evidence shows that these petitions were presented to the respondents at the time of the back-to-work movement. Moreover, signing the petition by the petition's own terms automatically involved "resignation" from the.International. p0 Instances of employees who refused to join and were thereupon discharged are discussed below. EAGLE-PICHER MINING & SMELTING CONIPANY 785 a member of the Tri-State Union. James H. Roper resumed work for the Mining Company in August 1935, after becoming a Tri- State member. J. D. Hughes was reinstated at the Bendelari mine on November 4, 1935, 10 days after he applied for and obtained a temporary blue card. Each of the individuals named above had been members of the International before they joined the Tri-State Union. Besides this numerical indication that all those who obtained em- ployment with the respondents were, or shortly became, members of the Tri-State Union, there is evidence of the direct pressure, other than that described above, exerted by the respondents upon their employees to force them to join the Tri-State Union. The respond- ents did not call any of their employees who were members of the Tri-State Union to explain the circumstances of their membership therein. Nevertheless, the extent to which the respondents exerted such pressure plainly appears from the testimony of John Sheppard, a former supervisory employee of the Lead Company. In August 1935, Sheppard was acting director of research at Joplin with ap- proximately 26 research chemists under his supervision. He testified that on August 27, 1935, Leonard Vaughn, the general manager of the Joplin plant, summoned Sheppard to his office, 'where he told Sheppard that the Eagle-Picher companies wanted the employees to join the Tri-State Union. Vaughn urged Sheppard to take action toward recruiting the research employees into the Tri-State Union. He told Sheppard that such steps were necessary since it was diffi- cult to keep the employees in the plants, mines, and smelters in the Tri-State Union if the research employees remained outside the fold.97 Vaughn stated that it would be difficult for the Tri-State Union to be maintained if there were hold-outs in the laboratory, and that if the research men did not join there was grave danger ' of violence to them at the gates from members of the Tri-State Union. Although Sheppard was reluctant to press his men to join the Tri- State Union, he posted a notice on the laboratory bulletin board, dated August 27, 1935, which stated : An official of the ... Tri-State Union called on me Friday, August 23, in the interest of the union. Today, through Mr. Leonard Vaughn, manager of our Joplin plant, I received in- formation regarding the same union, to the effect that this is a union not inimical to the policy of our company. Consequently, today application blanks of membership in the aforesaid union B' Shortly before this , officers of the Tri-State Union had expressed concern at the fact that the laboratory employees had not joined. Thus, the minutes of the Tri-State Union, Jasper Association No. 1, dated August 23, 1935, record that, "F. W. Evans, president of the union , was present and made a report on his conference with Mr . Sheppard . relative to enrolment of laboratory workers in the union." 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD will be distributed to all employees of the research depart- ment. . . On August 28 Sheppard reported to Vaughn that he had dis- tributed the membership applications. On the same day Sheppard wrote a letter to J. R. MacGregor, vice president of the Lead Com- pany and in charge of the research department, in Cincinnati. In this letter, Sheppard expressed concern over the necessity of joining the Tri-State Union and protested having to force his employees to join. He wrote: The present situation had its origin as inquiries I have made reveal, in an attempt over a month ago to force acceptance of labor union membership of the research employees. . . . Re- cently talk has got around that a move is going to be made to force our men in the union . . . either by direct action or by indirect means. What makes immediate communication with Cincinnati imperative is the outcome of a conference I had with. Mr. L. Vaughn at the instance of the latter. Briefly the outcome of that conference was a somewhat veiled intimation that every employee of the research department was going to be required to take out membership in the union and I was to make it plain that membership is obligatory. . . . Our men will un- questionably join any labor union they have to. join if they are told they must do it to keep their jobs. There is no use pretending, however, that their feelings are otherwise than they are. Likewise. I. will. deem. it, my duty to carry, out the .wishes of the management if they be to make membership in a labor union a condition for employment in the research department. On the same day, Sheppard sent MacGregor a second letter, con- taining a petition signed by each employee in the research department with a single exception, in which these employees expressed their de- sire not to join the Tri-State Union; and asking the management "not to cause us to join the said labor union." On the following day, MacGregor telephoned Sheppard and instructed him that member- ship was not compulsory and that Sheppard should hold matters until MacGregor's arrival in Joplin on September 2. After MacGregor's arrival in Joplin on September 2, he held sev- eral conferences at which, according to Sheppard's testimony, Mac- Gregor was "sort of indefinite." MacGregor, however, reprimanded Sheppard for having kept written records of the controversy since such records might be disadvantageous to the respondents. On September 6, MacGregor wrote letters to the research-depart- ment employees stating : EAGLE-PICHER MINING & SMELTING COMPANY 787 It is our opinion that the question of becoming a member is a matter which rests entirely with the individual and the mem- bership committees. The management has no requirement that any employee must belong to any organization of any nature. Several of the research-department employees showed this letter to Sheppard, who had not been sent one. Sheppard immediately wrote MacGregor approving MacGregor's letters and stating that he as well as the men appreciated them. The matter was not, however, allowed to rest there. Between September 6 and 17, Kelsey Norman, the attorney for the Tri-State Union, requested Sheppard for permission for Norman and Evans to address the research department. On September 17, Sheppard wrote MacGregor, reporting Norman's request and stating : I should like to know whether it is agreeable to the manage- ment for me to grant this request, or otherwise. Ordinarily, I should not entertain for a moment the request of the union organizer to hold a meeting within the premises and time of the Research Department, for reasons you are familiar with. I deem it proper to seek the decision of the Management. In the same letter, Sheppard urged several reasons for refusing the request. Nevertheless, on or about September 23, MacGregor tele- phoned Sheppard and instructed Sheppard to permit the meeting. On the sariie day, Sheppard posted notices on the bulletin board announcing that the meeting would be held on September 25. Meanwhile, between September 17 and 23,98 George W. Potter, vice president of the Mining Company, called Sheppard to his office and told him that the Lead Company wanted Sheppard and the employees under him to join the Tri-State Union. Sheppard replied that although he would not stand in the way of the research-depart- ment employees' joining the Tri-State Union, he refused to compel them to join. Potter argued that it was difficult to keep other em- ployees in the Tri-State Union as long as the laboratory workers were permitted to stay out. Potter then told Sheppard that it was Sheppard's duty to have his employees join the Tri-State Union, and that this had to be brought about without leaving any records. Sheppard protested that since Potter was an officer of the Mining Company, Potter had no authority over him or the research depart- ment, which was attached to the Lead Company. Sheppard told Potter that any such instructions to him must come from the Lead Company and that he would check on Potter's authority. °e The respondents ' renewed efforts to compel the laboratory workers to join the Tri- State Union coincided with the Tri-State Union's interest in the matter . The minutes of a meeting held on September 20, 1935, of the Jasper Association of the Tri -State Union report that "General Counsel Kelsey Norman reported . . . upon the status of the labora- tory men, and the attitude of Mr. Sheppard." 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, Sheppard telephoned MacGregor in Cincinnati. Mac- Gregor told Sheppard that Potter was in charge of labor relations: in the district and that Sheppard was to follow Potter's instructions in these matters. On September 23, MacGregor wrote Sheppard stating that Norman should be permitted to "visit" the laboratory and confirming his prior statement that "Mr. Potter, while the strike is on, is in entire charge of all matters involving employment of our entire district." On September 25, Sheppard wrote MacGregor that he had in- formed Norman that permission had been granted for Tri-State Union representatives to address the laboratory workers. Sheppard also wrote in this letter : In assuring you that I will carry out Mr. Potter's instructions,. I wish to say that the latter, judging by what he has told me of them, will include instructions which I feel are not in the interest of good working of a research department, and which will render your letter of September 6 to our men °9 null and void.. In this, I admit of course, he is within his rights. Norman addressed a meeting of the research department on Sep- tember 25.. The meeting began at 11 a. in. and lasted to between 1 and 2 p. in. It took place within the plant, and although it was. during working hours the wages of the employees were not deducted for the time lost. Norman spoke in favor of the Tri-State Union and stated in substance 100 that the Tri-State Union had the coopera- tion of Eagle-Picher; that although the companies did not demand that anyone join the Union, they did not employ non-members; that the Tri-State Union was organized to keep the International out;. that the company would be pleased if the employees joined since it was "intensively interested in keeping this organization going"; that the Tri-State Union had a preferential-shop contract with the- respondents and was recognized as exclusive agent of the "mines and smelters"; that a certain employee who had joined the Tri-State Union but had begun "talking a lot . . . and caused a dissention (sic) among the workers" had been fired "for the good of the morale," that "Eagle-Picher wants everyone to join this Union" and that as a matter of loyalty to the company the employees should join; and that if the Tri-State Union were not kept alive and the International Union not kept out, the smelters would close down and "you would have to look for a job some place else." After "This was a reference to the letters addressed by MacGregor to the individual labora- tory employees alleging that they were free to join or not to join the Tri-State Union. 100 A stenographer was present and at Sheppnrd 's direction , took notes at great length, though not entirely verbatim , on Norman's remarks . Sheppard read and checked these notes directly after they were transcribed , and testified at the hearing that they were substantially correct. EAGLE-PICHER MINING & SMELTING COMPANY 789 Norman's address, the- meeting. was thrown open for questions in the course of which the laboratory employees clearly demonstrated their suspicion of Mike Evans and of the bona fides of the Tri-State Union, and their extreme reluctance to join the Tri-State Union.101 Immediately following this address, Sheppard summoned each laboratory unit department head individually into his office and in- formed each one that "we had to join the Union," that Sheppard "was being forced to join and that all of us had to join," and that each department head "was to go to his men individually and inform him of that." Thereupon the research employees filled out appli- cation blanks and were received into the Tri-State Union. On September 26, Sheppard wrote Potter stating that Sheppard had been notified "by Cincinnati" of Potter's authority in the premises, that Sheppard would carry out Potter's instructions, and that "I am assuming that those instructions you gave me recently before I had been supplied with the foregoing information are still intended to stand. Based on that assumption, I have carried out these instructions." The respondents failed to introduce substantial evidence to refute Sheppard's testimony or the documentary proof of this series of events. The principal actors, Potter, MacGregor, and Norman 101 were not called to testify by the respondents. The only witnesses called on by the respondents to refute Sheppard's testimony were H. R. Harper and Leonard Vaughn. Harper was assistant research director of the laboratory at the time of the hearing and had been in 1935 the head of the storage-battery division of the research depart- ment. Harper denied that any representative of the respondents had ever required him to join the Tri-State Union or that he ever heard that there was such a requirement. He admitted, however, that, during the period in question, he joined the Tri-State Union. He assigned as the reason for joining the fact that "it appeared that there might be trouble around the plant from some hot-heads, and preferring to keep things smoothed over, I joined the union." Har- rier, on cross-examination, testified that he "probably" signed the petition addressed to the management and described above. This 101 Testimony of Norman's speech was admitted by the Trial Examiner as original evi- dence only. We shall observe this limitation even though we believe the Trial Examiner was in error. Nevertheless, by placing their stamp of approval on this speech through granting permission for its being made on company time and property and by their com- plete cooperation with Norman and the Tri -State Union in this matter, the respondents are responsible for the coercive effect which this speech had upon the laboratory employees. 102 MacGregor was no longer employed by the respondents but was working in Chicago at the time of the hearing. The respondents' counsel stated that MacGregor could not appear at the hearing without serious loss to his business interests . The Trial Examiner then stated that hearings could be held on a Sunday so that MacGregor could fly to Joplin. Thereafter, the respondents' counsel stated that MacGregor would testify. MacGregor , however, did not appear. Norman was present at the hearing. Potter was in Joplin during the hearing. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition, which we find was signed by Harner among others, stated that "we have heard many rumors that we may be required to join" the Tri-State Union, and refutes Harner's denial that he had ever heard of such a requirement. Further, Harner recalled Norman's address to the research employees, and that this meeting occurred shortly before Harner joined the Tri-State Union. Harner testified that he did not recall that Sheppard called him into his office and told him that he had to join the Tri-State Union. He testified, how- ever, that he would not deny that such an incident occurred. Vaughn's testimony concerning this incident was also evasive and unsatisfactory. He testified that in the summer of 1935 he had heard rumors that certain employees excepted to the failure of the research men to join the Tri-State Union and that the research men might be stopped at the gate and be refused admittance. Fearing violence, Vaughn accordingly summoned Sheppard to inform him of the situation. Vaughn, who was the general manager of the Lead Company's Joplin smelter, told Sheppard that he had no au- thority over Sheppard and that he "could not assume any responsi- bility for the welfare of his [Sheppard's] men." When, according to Vaughn, Sheppard asked whether Vaughn was directing him to compel the laboratory workers to join the Tri-State Union, Vaughn testified that he replied that he "was not telling him that he had to do anything; that he was free, white and 21, and he could write his own ticket and that was his job." On cross-examination, Vaughn was unable to recall where or from whom he had heard rumors of violence at the gate against the laboratory employees. Vaughn admitted that he was in control of the Joplin plant, in which the research depart- ment was located, that he had authority to protect the property and personnel at the Joplin plant, and that he did post special guards at the gate for such protection. Vaughn was unable to explain why it was necessary for him to shift to Sheppard the responsibility for protecting the 26 laboratory employees from violence at the gate when Vaughn had already posted 20 special guards to protect the other 275 employees at the same plant.103 Under all the circumstances, and in view of the respondents' failure to call the principal actors in this incident, we do not consider that the evasive and inconsistent testimony of Harner and Vaughn refutes the testimony of Sheppard and the unimpeached documentary evidence presented in connection therewith. We find that this series of events occurred as testified to by Sheppard and as established by the docu- mentary evidence. We further find that the respondents' conduct in 103 On redirect examination , and in answer to a leading question , Vaughn attempted to clear up this inconsistency by testifying that the violence which he feared might occur before the laboratory employees reached the gate on their way to work. We do not credit this explanation. EAGLE-PICHER MINING & SMELTING COMPANY 791 directing Sheppard to order his employees to join the Tri-State Union was not an isolated incident confined to this single department.104 It is apparent from the testimony concerning this matter that the respond- ents were careful to avoid keeping or to destroy records of their illegal conduct and, to some extent, to give a surface appearance of permitting their employees a free choice to join or refrain from joining the Tri- State Union. Sheppard was the only one who testified who was no longer employed in the Tri-State District or by the respondents. Without obligations to the local operators or the respondents, he was free to draw a clear and convincing picture of the respondents' policies in relation to membership in the Tri-State Union. From the fact that the respondents exerted such strong pressure upon the laboratory employees to join the Tri-State Union, we may properly, and do, infer that similar coercion was exercised against the ordinary production employees. Since it was to "keep in line" the latter that these events occurred, we regard the incident as typical of the respondents' conduct during this period, and it is in the light of this incident that we con- sider the testimony regarding the respondents' employment policy and their requirement of membership in the Tri-State Union. (3) Statements of supervisory employees and others concerning conditions of employment Separate and apart from the evidence of the requirement by contract of membership in the Tri-State Union, and from the evidence of coercion by the respondents directed against employees who had not yet joined the Union, the record is replete with evidence that super- visory employees told prospective applicants for reinstatement either that their activities on behalf of the International precluded them from reinstatement or that membership in the Tri-State Union was a condition precedent to reemployment. Approximately 50 witnesses for the Board testified to such statements made by Campbell, by Vaughn, by Frudenberg, by Bailey, by, Ritter and by other supervisory em- ployees.105 Typical testimony concerning such statements follows. Ulyes Bradbury testified that on or about June 15, 1935, Ritter and Bailey asked him whether he wished to return to work. Bradbury replied in the affirmative, but when Bailey announced that a blue As described above, it was during this same period that a great majority of the supervisory employees who testified joined the Tri-State Union. 105 The precise dates of some of these statements do not appear . However , we regard such statements as relevant to the question of the blue-card requirement , whether they were made before or after the effective date of the Act. The respondents claim that there was no blue-card requirement at any time , but they do not assert, and the record does not show, that there was any change in the respondents ' policy in that regard after July 5, 1935 ; it affirmatively appears, in fact, that there was no such change. Accordingly, statements concerning the blue-card requirement have probative value whether made before or after July 5, 1935. 247383-40-vol. 16-51 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card 1011 was necessary, Bradbury demurred. Bailey replied that un- less Bradbury obtained a blue card he would never work another day for the respondents.107 Elmer Tinkler, chairman of the Inter- national's Mining Committee, testified that in July 1935, he asked Bailey for reinstatement. Bailey answered, "You will have to get on the right side of the fence first. . . . You will have to get a blue card." Bailey asked whether Tinkler had picketed and Tinkler replied in the negative. Bailey next asked whether Tinkler had served on any committees, and when Tinkler told Bailey that he had, Bailey stated, "No one that is on any committees or in any office will never work for the Eagle-Picher Company." Guss Cooper testified that in July 1935 Bailey told him that "I had been too hot during the strike, and also I was too good a union man to ever get back on in the Tri-State district. And also, he said . . . he would see that I never worked in the Tri-State district." 108 Winth Jervis testified that in the spring of 1937, he asked O'Dell about obtaining employment at the respondent Mining Company's Mary N. Beck mine. O'Dell replied that Jervis .could work if he received a blue card, and assured Jervis that he could get such a card "provided you haven't been too red-hot an International man." H. E. Bridges testified. that in April 1937, while working for the respondents, he was summoned by O'Dell, who told Bridges, "I am letting you go . . . it is not because of your work ... You are as good a man as I have got but I don't know as I have to tell you at all what it is about, but I will tell you. You have been doing too much talking about the C. I. O. You know a little bit too much about it and for that reason I am letting you go." 10° Harry L. Rice testified that on June 27, 1935, he had a conversa- tion with Geddes, superintendent of the oxide department at the Galena smelter, concerning returning to work. Geddes replied that another person had filled Rice's job and that the other man was "the only one qualified for it." When. Rice asked in what respect he was not qualified, Geddes replied "Everything but the blue card." George White testified that in July 1935, he asked Vaughn about reemployment with the Lead Company. Vaughn answered, "No. Your neck is a little too red 110 to go to work again as long as I am manager of this plant." John Mays testified that he spoke to Vaughn 100 A blue card is the indicia of membership in the Tri-State Union. 107 James Thompson also testified that Ritter and Bailey, in their back-to-work tour in May or June, stated that if Thompson did not join the Tri-State Union and go back to work immediately, he never could work again for the respondents. 101 Others who testified to similar remarks made by Bailey, or to Bailey's statements concerning the necessity of blue cards, were N. J. Pettit, Luke A. Griffitt, Henry Bloom, William Bryant, And Ralph Henderson. 101 These incidents were undenied. O'Dell was not called by the respondents. uo "Red-neck" was the common description applied in the Tri-State area to active Inter- national members. EAGLE-PICHER MINING & SMELTING COMPANY 793 about going back to work in July 1935, that at first Vaughn's replies were favorable, but that on the day following Mays' attendance at an International meeting, Vaughn asked Mays whether he had attended the meeting. When Mays said that he had, Vaughn told him, "Well we can't use you, we have to have men that's for the company. We can't have men that's playing both sides." 111 Raymond Danel testified that in September . 1936, he spoke to Hal- lows about reinstatement, and that Hallows asked whether Danel was a member of the International. When Danel answered that he was, Hallows said, "I can't do anything for you because we don't work International men." Clifford Doak testified that late in June 1935, DeWitt, his ground boss, told him that Doak would "never work for Eagle -Picher as long as he carried an International card ," and that a blue card was neces- sary for reemployment by the respondents .112 Kenneth L. Howe testified that in August 1935, Frudenberg told Howe that he was unable to use him and that Frudenberg "had no use for those that went out and picketed." P. M. Brooks testified that in July 1935, Frudenberg told him that a blue card was necessary and stated, "Do you think that the company would hire a man that stayed away as long as you have and hung around these `reds' at Picher?" 113 Ernest Tennis testified that in the spring of 1937, he applied to Newby for reinstatement . Tennis testified that Newby asked "if I was in on any of them riots, or anything that had taken place, and I told him I wasn't. And he said `Well, I will find out.' So he went to his papers and books and looked through them and said, `Well, I can't find anything against you , so come back day after tomorrow, and I will give you an answer."' When Tennis returned 2 days later, Newby refused to issue a card to him. George Messer testified that sometime after the strike , Newby told Messer that he had been "black- balled . . . for union activities , for being right down at the union hall agitating, pushing things all you knew how and also talking in the mills at all times." 114 John Basnett testified that DeMier made statements similar to those set out above ; Arch Underhill testified that Foster Mays did also; similar testimony was given by W. C. Novak , J. D. Hughes, 'u Others who testified that Vaughn told them that an International member could not obtain employment, or that a blue card was necessary , were Roy Bray , Timothy Rayon, and Chauncey Mitchell. " This testimony was undenied . DeWitt was not called on to testify by the respondents. '13 Other witnesses who testified that Frudenberg made similar statements or state- ments that a blue card was necessary were John Millner , Ray Mayfield , A. G. Black, and Grant Cavin. '4 Others who testified to statements by Newby that International activities were a bar to reemployment or that a blue card was necessary were E. O. Messer, Roy Cottongin, E. K. Bogle, and F. F. McIntire. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Everett Faires, and H. L. Freeman concerning Joe Pruitt; by S. O: White and James Thompson concerning Keithley ;115 by Joshua Roberts, Roy Bray, Tim Rayon, Claude Dalton, Chauncey Mitchell, and Orven Blinzler concerning George; by Walter Parmer concerning Carl Juergens; by A. O. Plummer concerning Marcus; and by W. S. Fulkerson and Ed Blackourn concerning Campbell. Except as noted above, and except in the case of testimony con- cerning statements made by Pruitt, who had died before the hearing, all the supervisory officials either expressly or generally denied the statements attributed to them by these witnesses. We are aided in the resolution of this conflict of testimony by the probabilities inher- ent in the situation. As described above, the respondents had pur- sued a strong policy of hostility toward the International and of concrete as well as moral support to the Tri-State Union. Further, the respondents had entered a virtual closed-shop contract with the Tri-State Union and had exerted strong pressure even on the re- search employees to join the latter organization. Finally, most of the supervisory employees to whom these statements were attributed were themselves members of the Tri-State Union. Some of them, as de- scribed above, had testified to their keen interest in and support of its policies. DeWitt, Bailey, Keithley and Pruitt, principal actors in many of these conversations, were particularly active in Tri-State Union affairs and served on its executive committee. Under these circumstances, and in view of the consistent pattern painted'by the various witnesses for the Board who testified to these statements, we find that they were made substantially as described above by these witnesses. We find, therefore, that the respondents' supervisory employees, during 1935, 1936, and 1937 announced, on behalf of the respondents, that active International members would not be em- ployed by the respondents and that a blue card was necessary in order to obtain employment with the respondents. 116 ns Keithley was not called upon by the respondents to testify . The statements attributed to him are undenied. VI Such statements by these supervisory employees were supplemented by similar and repeated statements , other than those concerning the contract, in the Blue Card Record. Thus in the issue dated October 5 , 1935, there appeared : "And if you are not a striker. agitator or so and so, They 'll give you -a -card and put you to work, Hurrah for Mike and .Joe." On January 4, 1936, the paper reported, "the fact that all the mining companies In the district are now requiring their employees to he members of the Tri -State accounts for an unusually large number of applicants for membership in the Union during this past week . . An editorial on August .15, 1935, stated : "The plight of these die-hands [those who had not joined the Tri-State Union] Is desperate . They . . . find practically every mine and smelter closed to them. They are faced with the alternative of getting into another line of work or leaving the district . . On May 7, 1937 , an editorial referred to a "very few chiseling operators" who "have been very incautious about work- ing internationalites and non-Blue Card members . For the protection of our organiza- tion . . this chiseling and cheating must stop ." As described above, this paper was widely read by the respondents' officers and its statements were never repudiated by them . As stated above, we find that the respondents authorized and approved these statements. EAGLE-PICHER MINING & SMELTING- COMPANY 795 Conclusions in respect to the respondents' employment policies after the strike:From the evidence described and the facts found above, we conclude that the respondents' consistent policy was to deny employment to active International members and to require mem- bership in the Tri-State Union. There is no evidence, and the respondents did not attempt to show, that after the Tri-State Union became the Blue Card Union such policy was changed.""' Under the circumstances, the presumption of continuance of a known state of facts is applicable to the instant situation, and we therefore also conclude that the respondents required membership in the Blue Card Union.. Finally, we conclude that the respondents in effect used the Tri-State and Blue Card Unions as employment agencies, and that the respondents, by these Unions' policy of excluding all members suspected of sympathies for the International, as described above, further weeded out International members. We find that by the acts and conduct described above, the respond- ents have interfered with, restrained, and coerced their employees in their exercise of the rights guaranteed in Section 7 of the Act. The respondents, however, contend that they were not guilty of discrimination in regard to hire and tenure, within the meaning of Section 8 (3) of the Act, since the persons named in the complaint were not employees as defined in the Act. In their second amended and substituted answer the respondents aver that the cessation of work ... and the resumption of operations ... were all prior to the effective date of the National Labor Re- li,,ttiois Act . . .; and there was on the effective date of said National Labor Relations Act no labor dispute . . . In the exceptions, the respondents further urge that on or after July 5, 1935, the former employees of the respondents, who were employed by the respondents at the time of or prior to the strike of May 8, 1935, but who had not returned to such former employment, had ceased to be employees within the meaning of the National Labor Relations Act. We believe that the legal issue thus raised has been resolved adversely to the respondents' contention. As described above, the strike began on May 8, 1935. Except for the Galena smelter and the Big John mine, which did not reopen until on or about July 16, 1935, the respondents resumed operations on or about June 10, 1935. Although the respondents contend that their operations were completely manned before July 5, 1935, the effective date of the 117 The agreement between the A. F. of'L. and the Tri -State Union provided that the Blue Card Union should take over "all contracts" held by the Tri-State Union. See also the editorial of May 7, 1937 , quoted in the prior footnote. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act, the evidence does not support their contention. The respond- ents' pay rolls for July 5 and 16-20, 1935, are in evidence. The July 5 pay rolls list approximately 595 names while the July 16-20 pay rolls list about 711 names.118 Comparison of the names on these two pay rolls show that 38 names appearing on July 5 do not appear on July 16, while 172 names appear on the July 16 pay roll which are not listed on July 5119 Although no other pay rolls were offered, the record shows that the respondents' operations continued to ex- pand 120 after July 15, 1935. Thus at the end of July 1935, the Central Mill added a third shift. Frudenberg, the superintendent of the Central Mill, testified, and we find, that when the mill re- opened, only 45 or 50 men were employed, that a full crew consisted of 80 or 90 men, and that "I don't think the mill got under full load until the first of 1936, to my recollections." Production is at its lowest ebb in July, and is not at its peak until winter and spring. That it substantial number of employees were added after July 1935 is shown by examination of a "labor survey" prepared by the re- spondents and containing the number of men employed from day to day throughout the period in question. This survey shows that on July 5, 1935, 498 men were employed and on November 1, 1935, 864 men were employed. We find, therefore, that the respondents had not before July 5, 1935, reached the absorption point in their normal employment re- quirements, but that on and after July 5, 1935, they.had jobs avail- able at least to the extent indicated by the above figures. Further, it affirmatively appears that the strike which had begun on May 8; 1935, was still in effect on July 5, 1935. The conferences between International representatives and Potter, on July 6 and 16, were clearly predicated on the assumption that the strike was then in existence, particularly since the undenied evidence is that the discussion centered around the settlement thereof. Undenied testi- mony establishes that Potter himself considered on July 16, 1935, that the strike was still in progress since he urged that the striking employees be returned to work by the International Union's com- mittee. Further, J. R. MacGregor, the respondent Lead Company's vice president, wrote to Sheppard on September 23, 1935, in response to Sheppard's inquiry concerning Potter's authority over him, that "There is some confusion arising from the fact that some of the operations at the Galena plant, prior to its reopening, were transferred to the Joplin plant . On both pay rolls of July 5 and 16, several names appear on the Joplin pay roll but are listed as "Galena." There is, however, a separate pay-roll list on these dates for Galena , and the names appearing in this do not coincide with "Galena" nien on the Joplin pay roll. Excluding the Galena pay roll, approximately 625 navies appear on the respondents' July 5, 1935, pay roll and 661 on .July 16. nv This includes 88 names on the Galena pay roll of July 20 which were not on the pay roll of July 6. '"On May 8, 1935, the respondents had approximately 1,100 names on their pay roll. EAGLE-PICHER MINING & SMELTING COMPANY 797 ... this letter . . . also confirms my statement that Mr. Potter, while the strike is on, is in entire charge of all matters involv- ing employment .. 121 Picketing continued throughout 1935, and the strike, up to the time of the hearing, had never been formally terminated. An Inter- national membership book belonging to one of the respondents' strik- ing employees, placed in evidence, contained strike stamps up to the date of the hearing. We find, therefore, that the strike was still in effect on July 5, 1935. Under these circumstances, it is settled that strikers do not forfeit their protection under the Act by reason of the fact that the strike was begun before the effective date of the Act. In Matter of Carlisle Lumber Company and Lumber & Sawmill Workers' Union, Local 2511,1'12 the strike began on May 3, 1935, and continued after July 5, 1935. After July 5, the company imposed illegal conditions on a return to work by the striking employees. The United States Circuit Court of Appeals for the Ninth Circuit rejected the com- pany's contention that the Act did not apply to these employees, stating : It is clear here, that at the time of the unfair labor practices, there was a current labor dispute. It is likewise clear that the individuals, that is, the union employees, ceased their work to sustain their position in the controversy. Under the Act, there- fore, the union members were "employees." 123 A similar situation existed in Matter of Jeffery-DeWitt Insulator Company and Local No. 455, United Brick and Clay Workers of America, 124 where the strike began on June 15, 1935, and continued after July 5, 1935. Again the company contended that the strikers had lost their status as employees prior to July 5, 1935, and that therefore the Act was inapplicable. The United States Circuit Court of Appeals for the Fourth Circuit held to the contrary, stating : The record shows clearly that a current labor dispute existed. ... It has long been recognized by the law, as well as common understanding, that the relationship of employer and employee is not necessarily terminated by a strike. . . . Irrespective of the statute, therefore, the strike did not of itself result in a complete severance of the relationship which had been established between the company and its employees, and this situation was not ma- 121 Italics supplied. 122 2 N. L. R. B. 248. 123 National Labor Relations Board v. Carlisle Lumber Co ., 94 F. ( 2d) 138, 145 (C. C. A. 9th, 1937 ), cert. den. Carlisle Lumber Co . v. National Labor Relations Board, 304 U. S. 575 (1938). 221 1 N. L. R, B. 618. 798 DECISIONS OF NATIONAL LABOR RELAT.LONS BOARD teri ally changed by the resumption of operations on June 20 [1935], even .though the company announced that those em- ployees who desired to work must go to work on that day. The mere fact that the labor dispute had commenced prior to the passage of the Act does not withdraw the parties or the dis- pute from the regulatory power of Congress as to acts sub- sequently occurring . . . " 125 We find, therefore, that a current labor dispute existed on and after July 5, 1935, and that the strikers retained their status as employees within the meaning of the Act at all times after May 8, 1935.120 The respondents' second chief contention is contained in its an- swer amended during the hearing. Such answer avers : That said persons appearing in Schedule "A" on May 8, 1935, struck and refused to continue in respondents' employ and have at all times maintained and pursued said strike,"' and failed 126 Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 91 F. (2d) 134 (C. C. A. 4th, 1937), cert. den. 302 U. S. 731 ( 1938). 126 Board's counsel, apparently in order to show the steps taken by the respondents to break the strike, placed in evidence letters, dated June 22 , 1935, and addressed to Inter- national members still on strike. These letters were sent by the Lead Company to such members who had worked at the Joplin plant, and stated : "You are requested to remove your personal property from the company lockers . .. and withdraw any deposits due you, before June 29th, 1935. The lockers of all former employees will be vacated on that date." The Lead Company also sent notices on June 22 to strikers that their insurance certificates would be cancelled as of July 1, 1935. The respondents adduced no evidence concerning these letters , and they did not contend in their answer or exceptions that they were con- sidered to have operated as an actual discharge ; nor do the respondents rely on these letters in their contention that all persons named in the complaint had lost tneir employee status. Further, the evidence shows that at least some of the recipients of these letters who continued on strike were subsequently reinstated on acquiring blue cards . Under these circumstances, we hold that these letters were merely intended as a strategic device to hasten the return to work, and that the strikers were not discharged by the respondents. Cf. Matter of Biles-Coleman Lumber Company and Puget Sound District Council of Lumber and Sawmill Workers, 4 N. L. It. B. 679, enforced in National Labor Relations Board v. Bales-Coleman Lumber Co., 96 F. (2d ) 197, 98 F. ( 2d) 16 , 18 (C. C. A. 9th, 1938 ). In any event, in the Carlisle Lumber case, cited above, a strike occurred before the Act and con- tinued thereafter . On June 25 , 1935, the company announced to its employees that "tilde have closed our pay rolls which automatically discharges all of our former employees, excepting those now employed ..." In affirming a Board decision that the employee status was not thereby lost, the United States Circuit Court of Appeals for the Ninth Circuit said : "Respondent also contends that it had discharged all employees on June 25 , 1935. . . that it . had the unquestioned common law right to do so, and therefore it had no employees when the act became effective. . . . "There Is no limitation in the statute that individuals whose work has ceased as a consequence of a current labor dispute are employees only if they were not discharged prior to the effective date of the Act. The reading into the statute of such a limitation would constitute an abuse of power. National Labor Relations Board v. Carlisle Lumber Co.. 94 F. (2d) 138, 145 (C. C. A. 9th, 1937), cert. den. Carlisle Lumber Co. v. National Labor Relations Board, 304 U. S. 575 (1938 ). See also Matter of Standard Lime d- Stone Com- pany v. National Labor Relations Board, 97 F . (2d) 531 (C. C. A. 4th, 1938). Further- more, we find that even if the respondents' action could be construed as an actual dis- charge of the strikers , the discharge was caused by the men's participation in the strike." 127 It is to be noted, of course, that this averment is inconsistent with the respondents' contention that the strikers had lost their employee status. EAGLE-PICHER MINING & SMELTING COMPANY 799 to apply for reemployment or to make any reasonable or timely application therefor, and as a result said persons are barred by laches and are estopped to assert that respondents refused to reinstate them. . . . The respondents' contention that failure to apply for reinstatement precludes employees from obtaining reinstatement or other remedy under the Act, and precludes the Board from a finding of discrimina- tion, has also been rejected in prior cases. In the Carlisle Lumber Company case,12s following a strike, the employer reopened his plant and notified the strikers that as a condition of returning to work they must renounce "any and all affiliation with any labor organiza- tion." As a result, few union members made formal application. The Board held that such failure to apply did not bar a finding that the employer, had violated Section 8 (3) of the Act, stating : To say that because they have not made application to go to work, they were not refused employment would be to place a penalty upon them for not doing what they knew would have proved fruitless in the doing. The respondent's illegal conduct in publishing the aforesaid notice precluded all possibility of employment and relieved them of the necessity of making a formal application. Nor is it an answer to say that they were striking and would not have applied in any event. That was for them to decide. Furthermore, under the Act an employee cannot be required to renounce his union affiliation as a condi- tion of employment. The.-Board has applied the same rule where the unlawful condition attached to reinstatement was joining an employer-favored union.129 We find that such reasoning is peculiarly applicable to the instant situation. The respondents had signed a contract barring Inter- national members from, employment, and the existence of this contract was publicized by the Tri-State Union paper with the knowledge and approval of the respondents. The requirement of membership: im.:the Tri-State and Blue Card Unions was similarly publicized and known throughout the district. Approximately 50 claimants in this case were told by the respondents' supervisory officers that a blue card was necessary for reemployment. Some 25 or 30 of these claimants applied for work,130 and were refused be- Cited above and Order enforced in 94 F. (2d) 138 (C. C. A. 9th, 1937). Matter of Jacob A. Hunkele, trading as Tri-State Towel Service and Local No. 40, United Laundry Workers Union, 7 N. L. R. B. 1276; Matter of the Grace Company and United Garment Workers, 7 N. L. R. B. 766; Cf. Matter of Sunshine Mining Company and International Union of Mine, Mill and Smelter Workers, 7 N. L. R. B. 1252. 130 The respondents claim that, because of the rustling-card system, applications could be made only to Campbell, George or Vaughn. As. already described, however, the superln- tend,^nts , ground bosses, and foremen had ultimate power of picking men and assigning 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause they were members of the International or because they did not have a blue card. Supervisory employees who passed on appli- cations for reemployment were themselves members of, and actively interested in, the Tri-State and Blue Card Union. Potter informed union representatives who sought to settle the strike that it was "too late" since a contract had been entered into with the Tri-State Union. Every one of the approximately 200 claimants who testified stated, and we find, that it was their understanding that a blue card was necessary for reemployment, or for retaining employment. Under these circumstances, we find that the striking employees were under no obligation to make the useless gesture of applying for their jobs.131 We have found that on or about June 8, 1935, the respondents imposed as a condition of obtaining or retaining employment aban- donment of membership in the International 132 and further re- quired membership in the Tri-State Union. We have also found that, through its agency, the Tri-State Union, and through its super- visory officers, the respondents further required as a condition of employment even of those willing to abandon the International and to join the Tri-State Union, that the employee be one who had not been active in International affairs. We have found that at no time on or after July 5, 1935, did the respondents abandon these policies. On July 5, 1935, such conduct became illegal under the Act.. Finally it appears that, although after May 8, 1935, the respond- ents did decrease the number of men whom they employed, the members of the International were the only large group which failed to obtain reemployment. Campbell testified, and we find, that in so far as possible and in so far as they were available, those persons who had been on the pay rolls on May 8, 1935, were rehired. Yet the pay rolls of July 5, 1935, show that 83 men had been hired by the respondents who had never before been employed by them,-while 71 were on the July 5, 1935, pay roll who had been employees of the respondents at some time before, but not on, May 8, 1935. That not many of the employees as of May 8, 1935, other than the claim- them to work. These latter supervisory employees were so situated that their refusals virtually precluded possibility of eventual work and - so made further application unneces- sary. For purposes of this discussion only , therefore, we regard a request to such super- visors as an "application." 131 The claimants' willingness to abandon the strike and return to work, absent the illegal condition , is discussed below. 132 Except as follows, all claimants who testified were members of the International on May 8 and July 5, 1935 : W. E. Bond, W. S. Fulkerson , A. O. Plummer , H. L. Rice, and W. L. Simpson joined shortly after May 8, 1935; Orlay Dodd and Ulyes Bradbury partici- pated in the strike and were identified with the International but were not members thereof ; C. G. Harreld had been delinquent in his dues for over 6 months , but went on strike ; Howard Wimberly had been a member and was reinstated shortly after May 8 ; and Alson Lamb was a member but was delinquent in his dues . All claimants who testified went out on strike. EAGLE-PICHER MINING & SMELTING COMPANY 801 ants 133 herein, failed ultimately to be reemployed by the respondents is evidenced by the testimony of Walter George. He further testi- fied that although between the time of the resumption of operations and the hearing there had probably been 1,500 or 2,000 applicants denied employment, the claimants herein who applied were the only ones whom he knew. All others he characterized as "foreigners"- that is, those who had never before been employed by the respondents. We find, therefore, that the respondents, on July 5, 1935, and there- after, discriminated against their employees generally in regard to hire and tenure of employment and conditions of employment, thereby discouraging membership in the International and encourag- ing membership in the Tri-State and Blue Card Union. We further find that by imposing such conditions and thus discriminating against the claimants , the respondents have interfered with, re- strained, and coerced their employees in their exercise of the rights guaranteed in Section 7 of the Act. The respondents, however, urge several considerations in relation to various categories of employees in an attempt to show that such employees were not discriminated against . We have found that the respondents had imposed an illegal condition as against all em- ployees. In claiming, thus, that certain factors were present which would have precluded some employees from reemployment even in the absence of the illegal condition , the respondents must assume the burden of "disentangling the consequences for which it was chargeable from those from which it was immune." 134 We have held that the respondents' own conduct made application by the claimants unnecessary . Therefore, it was not until the hearing that the respondents urged as a basis for certain of the refusals to rein- state, the contentions discussed below. The question is one involv- ing hindsight-whether the respondents would have refused employment to these employees entirely apart from the improper practices which we have found were committed. Where two motives for refusal may have existed, one clearly improper and one a just cause for severance of the employer -employee relationship, and where the improper motive is found to have been present in general , we must require the respondents to adduce clear and convincing proof that the claimants would in any event have been refused reinstatement for proper cause entirely apart from illegal considerations . Apply- ing such general principles, we turn to the consideration of the respondents' special contentions. 113 Persons named in the complaint as having been discriminated against. 111 National Labor Relations Board v. Remington Rand, Inc., 94 F. (2d) 862, 872 (C. C. A. 2d, 1937 ), cert. den. 304 U. S. 576 ( 1938). 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Claimants whose jobs were alleged to have been abolished during the strike The respondents contend that, for various reasons, they reorganized their business during the strike and that as a result, many of the jobs existing on May 8, 1935, were no longer available after the return to work. The evidence shows that certain mines, such as the Tulsa- Quapaw and Grace B mines, were sold before July 5, 1935, and were not operated by the respondents thereafter ; that shortly after. the strike, the National Industrial Recovery Act, under which the respondents were operating a 40-hour week, was declared unconstitu- tional by the United States Supreme Court, and that on resumption of work, the respondents returned to a 48- or 56-hour week, thereby dispensing with many jobs; and that changes in operations after May 8 and before June 15 ended a miscellany of other jobs. The Trial Examiner found that certain employees claimed by the respond- ents to have been engaged at such jobs on May 8, 1935, were not discriminated against since on and after July 5, 1935, their jobs had been abolished and work was no longer available to them.135 To these findings and conclusions the International has excepted, and we find merit in such exceptions. In his testimony, Campbell characterized many of the claimants as "N. R. A. swing men," "N. R. A. extra men," and "extra" men.. The characteristic of such "N. R. A." employees was their irregular employment. In the case of "N. R. A. swing men," , although a full 40 hours were worked each week, the men worked on a different shift each day. In the case of "N. R. A. extra men," the work was merely to "fill out" the gaps in continuity, and the men worked when they could. In rebuttal, many of the employees so characterized by Campbell 136 denied that they were "N. R. A." men or extras. We do not find it necessary, however, to resolve the difficult issues of whether or not a particular employee was an "N. R. A." or "extra" man, since we are convinced that the label is at least in part fictitious and has no particular significance for purposes of this case. The evidence shows that, prior to May 8, 1935, the choice of employees tc be assigned to the extra work required by the N. R. A. was wholly unrelated to ability or seniority. Campbell testified that "N. R. A." crews were made up partly of old employees, partly of new ones put on at the time the N. R. A. so required. Many of the "N. R. A. men" 1-35 Such persons are listed in footnote 6 above. The Trial Examiner did not find that jobs were abolished as to a few employees concerning whom the respondents bad so claimed at the hearing. The respondents did not, however , expressly except to this portion of the Intermediate Report. 1S0 Campbell admitted that the term N. R. A. did not appear after the names of the employees in the respondents' records, but claimed that his examination of the records led him to the conclusion as to whether an employee was an N. R. A. EAGLE-PICHER MINING & SMELTING COMPANY 803 had been employed by the respondents for a long time prior to the N. R. A., and had not been hired to meet its requirements. Nor is there any evidence in the record to show that employees other than the claimants who were engaged in what Campbell called "N. R. A. work" were not employed after the respondents resumed operations. It is admitted that the actual type of work done by "N. R. A. men" continued after July 5, and that "extras" were also hired thereafter. Further,'the evidence shows that Campbell made out rustling cards for certain of the employees who were claimed to be "N. R. A." and "extra" men when preparations were begun to resume operations.137 These cards were, of course, made out on the assumption that those for whom they were issued would work, and that, therefore, work would be available. Campbell testified that the fact that a rustling card was made out meant that a person was "fully entitled" to reem- ployment, and further that such cards were given, after the plants resumed operation, to every man who applied for them. Campbell stated that he "could not recall a single instance" in which a rustling card was refused until the end of 1935. From his own testimony, then, it affirmatively appears that jobs were available for at least some "N. R. A. men" and "extra." 138 Finally, it affirmatively appears that Albert Plummer and James Roper, although claimed by the respondents to have been "extras," 138 were reinstated after they had obtained blue cards.140 Under all the circumstances we do not believe that the respondents have shown that the jobs of these particular claimants have dis- appeared, but rather only that certain work was curtailed. A legiti- mate curtailment of work does not, however, necessarily justify exclusion of the claimants from consideration for the jobs remaining. The evidence shows that not actual job disappearance but member- ship in the International and failure to obtain a blue card were the real reasons for the failure to reinstate this group of men.141 vvr The evidence shows that rustling cards were issued for the following claimed "N. R. A. men" or "extras": John Basnett, J. C. Emerson, Luke Patrick, John E. Freeman, James C. Thompson, and Kenneth McNutt. 118 The evidence further shows that the respondents maintained the group insurance of many claimed "N. It. A. men" until August 1935, long after the N. It. A. had been invali- dated and their jobs had supposedly disappeared. 13B It is not clear whether the respondents attempted to distinguish between "N. R. A. extras" and ordinary "extras." They apparently contend that either type is precluded from employment. Plummer and Roper were ordinary "extras." 140It is also clear that at the Galena plant, which was the chief plant claimed to be affected by "job disappearance," many new processes and operations were begun after resumption of work. When asked by Board's counsel to name such new processes, Joe Newby replied, "Whew ! can't do that." 141 Thus, for example, we have found above that in July 1935, Frudenberg told Brooks, one of the alleged "N. R. A. men," that Brooks had "stayed away from his job" too long and had "hung around those `reds' at Pieher." Similarly in November 1935 Newby asked Freeman, who was also an alleged "N. R. A. man," whether Freeman had picketed, and told Freeman that the latter would be given a rustling card if he first obtained a blue card. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Similar reasons are applicable to the respondents' contentions con- cerning the abolition of the jobs of other claimants. We are unable to find that the disposal of the Grace B, Tulsa-Quapaw, or other mines automatically precluded the claimants who worked at those mines from employment. While some mines were closed, other new ones were opened. The evidence abundantly shows that both before and after May 8, 1935, employees shifted from mine to mine. Ray- mond Burgett, one of the claimants whose job the respondents urge had disappeared with the sale of the Tulsa-Quapaw mine, had worked at that mine for only a month; he had previously worked at the respondent Mining Company's Tom Brown mine. Similarly, G. M. Headley had worked at the Bendelari and Tom Brown mines before working at Grace B ; A. F. Bruce had worked at "10 or 12" different mines of the respondent during his 12-year employment ; W. S. Fulkerson worked at the Lucky Jew and the Tom Brown before working at Grace B ; Henry Bloom worked at the Tom Brown, the Southside, the Adams, and Picher mines 14, 22, and 30; Henry Freeman worked at the Bendelari, Tom Brown and Grace B ; A. O. Plummer worked at the Tom Brown and Grace B. Further, the evidence affirmatively shows that persons other than the claimants who had worked at these mines on May 8, 1935, were given jobs at other mines after the resumption of work. Respondents Exhibit No. 43, containing affidavits of employees who had resigned from the International before the mines reopened, show that Bud Griffith, Ollie Harmon, James Mann, Joe Nave, Dan Shears, J. E. Stacy and William Smith all had worked at the Tulsa"Quapaw prior to the strike and were put to work at other of the respondents' mines in June and July. The affidavits of these men show that almost without exception they first joined the Tri-State Union. Similarly, on March 1, 1937, A. O. Plummer, a claimant who had worked at the Grace B on May 8, 1935, was reinstated after he obtained a blue card. Concerning other "job disappearances," such as the abolition of the night shift at the Big John, the decrease in the number of ma- chinemen, and the curtailment of operations of shaft 86 of the Big John mine,142 the evidence is similar. Rustling cards were made out for some claimants although the respondents claimed that their jobs had disappeared; those who were not members of the Inter- national or who took out blue cards were given work elsewhere than at the place of their employment on May 8, 1935; and claimants in this category who did apply were refused by supervisory employees who told the applicants they had been too active in the strike or had failed to obtain blue cards. 1+2 There is evidence that this shaft continued in operation , but It is unnecessary to make findings on this issue for reasons herein stated. EAGLE-PICHER MINING & SMELTING COMPANY 805 Finally as to certain miscellaneous decreases in employment, Campbell's testimony is revealing. He explained that, for example, when the Big John mine reopened, one less machineman was em- ployed. When asked how he determined that the job thus abolished was the one of the particular claimant, Campbell replied : In my opinion, the men who reapplied and took the job more or less determined that, and the man who didn't reapply de- termined whether he had quit or not. Later, Campbell clarified this by explaining that if one job remained where two had been, whichever former employee applied first got the job, and the job of the remaining employee "disappeared." We have held in a prior case that where an employer by blacklisting four em- ployees because of their union leadership led them reasonably to believe that they would not be permitted to return to work and thus caused them to postpone their applications until after the available jobs were filled, it was, under such circumstances; a violation of Sec- tion 8 (3) of the Act "to apply the `first come, first served' principle" to these four men.143 We find from Campbell's testimony that in effect the respondents were simply applying a "first come, first served" principle of determining that jobs of the particular claimants had "disappeared" and that the application of such a principle was itself discriminatory where illegal conditions were present as a condition to reemployment. Under all the circumstances, we find that the respondents have failed to show that the claimants coming within this category would in any event have been refused reemployment, absent illegal conditions. (b) Claimants who filed lead poisoning or other compensation suits against the respondents The respondents contend that certain employees who filed suits or claims against the respondents alleging permanent, total, or partial disability by reason of lead poisoning or other illness were not dis- criminatorily refused reinstatement but were automatically dis- qualified in the filing of such claim.144 The Trial Examiner found that the respondents, by their failure and refusal to reinstate these men, did not discriminate against them. The International Union did not except to such finding. The evidence shows, and we find, that these suits were filed during the strike and alleged permanent disability since a, date prior to May 8, 1935. The evidence further 143 Matter of Mackay Radio ci Telegraph Company, a corporation, and American Radio Telegraphists' Association, 1 N. L. It. B. 201 , Board's order enforced, National Labor Re- lations Board v. Mackay Radio & Telegraph Company, 304 U. S . 333 (1938). ' Persons who filed such claims are listed in footnote 7 above. To that list should be added the name of Elmer Belk. 806. DECISIONS OF NATIONAL LABOR RELATIONS BOARD shows, and we find, that it has been the respondents' practice before and after May 8, 1935, not to employ persons who filed such claims or brought such suits against the respondents. Although the testimony of the claimants who filed these claims indicates that at least in some instances such persons did not have the disabilities which they had alleged in their claims, and that these persons had been persuaded to sue by attorneys, we feel that we are bound by the respondents' rule. We find that as to the claimants in this category, the respond- ents have successfully established that, regardless of all other con- siderations, these claimants would have been refused reinstatement. We find, therefore, that the respondents, by refusing reinstatement to Elmer Belk, Leroy Berry, Orwell Blinzler, Roy Bray, Clabe Brown, Loman Brown, Elmer Dean, Orlay Dodd, Pleas Duncan, Oliver Hiatt, Walter Jewell, Jay O. Jones, Jess Kitch, Carl LaTurner, Clar- ence Loftin, William Mathiews, Clyde Schroeder, James Webb, and George White did not discriminate in regard to their hire and tenure. We will dismiss the complaint in so far as it alleges that these named individuals were refused reinstatement because of their International membership or their failure to obtain a blue card. (c) Claimants who are alleged not to have been employees of the respondents on May 8, 1935 The respondents urge that certain claimants were not employed by them on May 8, 1935; were not employees of the respondents ; and do not, therefore, fall within the issues as 'framed by the com- plaint.145 In his Intermediate Report, the Trial Examiner found that certain of the claimants were not so employed and, therefore, were not discriminatorily refused reinstatement. 146 The Interna- tional Union did not except to these findings in respect to these claimants other than L. B. Anderson and Earnest Bogle. The Trial Examiner did not find that Everett Hall or Elmer Mast fell within this disqualification, although the respondents urged that they did. In regard to this group of claimants other than Anderson, Bogle, Hall, and Mast, the evidence is clear that they were not employed by the respondents during the pay-roll period ending May 8, 1935. Manuel F. Jones last worked for either of the respondents on April 3, 1935.. Charles Owens was discharged for drunkenness on March 145 These persons are L. B. Anderson, Leroy G. Berry, Earnest K. Bogle, Clabe Brown, Everett C. Hall, Manuel Jones, Elmer Mast, Charles Owens, Albert Rigg, Joe Reece, Tom Reece, Clyde Schroeder, and Elmer Tinkler. We have already -excluded Berry, Brown. and Schroeder in the preceding section and shall not, therefore, consider the claims relating to them. 146 The persons so found by the Trial Examiner are listed in footnote 8 above. He al.Qo included Winth Jervis, Clayton Johnson, and Orville Stever, whose names were with- drawn or who did not testify. We shall not consider the claims as to them since they are excluded in any event, as noted below. EAGLE-PICHER MINING & SMELTING COMPANY 807 21, 1935, and removed his property from his locker and received a refund on April 8, 1935. His name does not appear on any of the respondents' pay rolls for the week including May 8, 1935. Neither Joe Reece nor Tom Reece had been employed by the respondents since 1934. Albert Rigg was discharged on April 2, 1935, for injuring a mule and was not thereafter employed by the respondents. Elmer Tinkler was di scharged by the respondents on April 10, 1935, and was not thereafter reemployed.147 Neither Anderson nor Bogle was on the respondents' pay roll for the week during which the strike began. Anderson last worked for the respondents on April 26, 1935, at which time, he testified, he laid off because he was sick. Bogle laid off on or about April 27, 1935, in order to visit his relatives; his foreman had given him permission to do this. The International, in its brief and exceptions, contends that it was the respondents' custom to grant temporary leaves and that the employee did not thereby lose his status. Although there is some evidence that employees were occasionally permitted to lay off a day or two and thereafter resumed the same work, we are un- able to find that it was the respondents' custom and policy to permit lay-offs for 2 or 3 weeks. We find, therefore, that Anderson was not an emp'oyee of the respondents at the time of the strike or thereafter. As to Bogle, however, we find that he retained his employee status because of the express permission of his foreman for his lay-off- The respondents also claim that Hall and Mast were not employed by them at the time of the strike. The Trial Examiner did not find that these men were not employees, and the respondents did not expressly except to his failure to do so. Hall was an extra employee who had last worked at the Galena smelter on May 3, 1935. He was not on any of the respondents' pay rolls for the week including May 8, 1935. We find, therefore, that Everett Hall was not an employee of the respondents at the time of the strike or thereafter. During the hearing, the respondents contended that Mast had been discharged for cause in April 1935 and was not therefore employed by the respondents. By way of rebuttal, witnesses for the Board testified that Mast had been discharged in April but that, after missing only one shift, he returned to work and worked up to the time of the strike. From the testimony of Mast and other witnesses, it appears that Mast had been discharged following the stealing of certain gasoline, that the respondent Mining Company had there- after investigated the incident on Mast's appeal, that such investiga- tion disclosed Mast was not the guilty party, and that the 147 There is evidence that he was discharged immediately after the respondents dis- covered he was chairman of an International Union committee. This was prior to the effective date of the Act, however, and Tinkler, therefore, was not an employee at the time the labor dispute beean. 247383-40--vol. 10--52 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondents' officials apologized and immediately restored him to his job. Mast's name appears on the Galena pay roll for the week including May 8, 1935, and ultimately the respondents' counsel con- ceded that Mast was put back to work. We find, therefore, that Elmer Mast was employed by the respondent Mining Company on May 8, 1935. We find that Manuel Jones, Charles Owens, Joe Reece, Tom Reece, Albert Rigg, Elmer Tinkler, L. B. Anderson, and Everett Hall were not employees of the respondents on May 8, 1935. The complaint does not raise any issue of discrimination against persons other than those whose names were on the pay roll for the week including May 8, 1935. We will dismiss the allegations of the complaint in respect to these claimants.148 (d) Strikers alleged to have been guilty of misconduct in the course of the strike The respondents urge that the misconduct of certain named claim- ants during the course of the strike precludes the Board either from finding discrimination against such persons or from ordering their reinstatement 149 These claimants fall into three general groups: (a) those convicted by a Kansas military court of participation in the Galena riot and/or perjury; 150 (b) those against whom charges of murder arising out of the pick-handle parade of April 11, 1937, were pending at the time of the hearing; 151 (c) Leroy Berry, who was indicted for an assault with intent to kill and whom we have already excluded on other grounds; and (d) M. J. Vanderpool,"' who was convicted and sentenced to 4 months in jail for the assault on May 27, 1935, on Sheriff Ely Dry. In his Intermediate Report the 148 The case of Luke A. Patrick is disposed of on similar grounds. Patrick went on strike on May 8, 1935, having worked for the respondents for 3 weeks prior to that time, earning a total of $47.99. On June 1, 1935, Patrick became a regular section laborer with the "Frisco" railroad in the Tri-State area. He was still employed there in 1938, having earned a total of $2,159. We find that on June 1, 1935, Patrick obtained regular and substantially equivalent employment. On July 5, 1935, therefore, when the Act became effective, he was not an employee of the respondents. We will dismiss the allegations of the complaint as to him. 141 It is not entirely clear whether the respondents ' contention is directed against a finding of discrimination or simply against the Board's exercising its discretion in issuing a remedial order on behalf of such claimants. For purposes of convenience only, we shall assume the former and discuss the issue here rather than in the section below entitled "The Remedy." 150 Such persons are John Bankhead , Clahe Brown , Elmer Dean , James Hensley, Darrell Largent, Carl LaTurner, Walter Overstreet, Wesley Qualls, Ted Schasteeu, W. F. Sowder, William Webb and Raymond Williams. For other reasons , we have already excluded Clabe Brown, Elmer Dean and Carl LaTurner. 151 These claimants are Jess Kitch, whom we have already excluded on other grounds, Darrell Largent and William Webb. The charges were subsequently dismissed , as noted below. 152 The Trial Examiner did not find that Vanderpool was disqualified from reinstatement, and the respondents did not expressly except to his failure so to find. EAGLE-PICiIER MINING & SMELTING COMPANY 809 'Trial Examiner found as to certain of these persons that, because ,of such misconduct, the respondents had not discriminated against them. The International excepted to these findings.163 These claimants were not, of course, discharged or notified that they would be refused reinstatement following the alleged miscon- duct.154 As described at length above, the strike was marked by 'considerable violence by the Tri-State Union. We have found that the respondents were both directly and indirectly connected with such violence. The respondents either paid for or supplied the pick- -handles; through their supervisory officers, they encouraged and par- ticipated in the violence. Further, as stated above, they employed as guards at the Galena smelter Luther Sons, a person with a criminal reputation in the community, and Charles Butler, who had been con- victed for robbery in the first degree.155 The record is devoid of any indication that the respondents discharged or refused employment to Tri-State Union members who were also guilty of, violence, nor did they in any way discipline their supervisory employees who partici- pated in such violence. Further, there is strong indication that the respondents and the Tri-State Union induced and procured local law 'officers in the Tri-State area to withhold arrest and prosecution of non-International members while at the same time International members were dealt with summarily and without proper hearing. Finally, other parties did not themselves treat the misconduct with great seriousness. The military court which convicted certain Inter- national members imposed a maximum sentence of 60.days. A great majority of the sentences were for far shorter periods, and many of the convicted persons were not required to serve their terms at all. The murder charges 15s were dismissed on February 28, 1939, by the Justice of the Peace for Cherokee County, Kansas, upon motion by the Special Prosecutors in the cause. The motion to dismiss was based on "insufficient evidence." 157 The respondents themselves did ius In its exceptions and brief the International collaterally stacked the validity of the military convictions , contending that such trials and convictions were in violation of the Kansas State constitution . In view of our findings rind conclusions concerning these persons, it is unnecessary for us to pass upon this contention. 164 The insurance certificates of four of the men named as having been convicted in July 1935 for participation in the Galena riot were not cancelled until the respondents so noti- fied the insurance company by letter dated August 9, 1935 . In this letter, 98 policies were cancelled by the respondents , with the explanation that since the men "have not to this time re-applied for work, they must have definitely quit.' 11 165 Butleir had been convicted of this crime while employed by the respondents, who continued ' to employ him thereafter. As described above , the Tri-State Union had in its employ one Sylvester Walters , a notorious criminal . In September 1935, the Tri-State Union paid Walters $738. The Union's bookkeeper testified , and we find, that this sum came out of the "subscription fund" supplied by the respondents. 156 For aught that appears in the record, the charges were no more than an information signed by an individual. 137 We take judicial notice of the records of the Justice of the Peace in this matter. See .Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219, 389. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not except to the Trial Examiner's failure to find that Vanderpool was precluded from reinstatement. We have said that we cannot condone violence by any party to a labor dispute, but that "an employer cannot, however, use the fact that violence has been committed during a strike as a pretext for not reinstating some of his employees where the real motive behind his refusal is the union activities of such employees." 168 From the facts as presented above, and in the light of the respond- ents' conduct from the record as a whole, it is clear, and we find, that the real reason behind their contention that these men's misconduct disqualified them is the union membership and activity of these em- ployees and their failure to obtain a blue card, and not any act of violence alleged to have been committed by them.""' (e) Persons claimed to have expressed an unwillingness to return to work In their factual brief based on testimony adduced at the hearing, the respondents named several claimants as having refused to return to work, or as having stated at the hearing that they had been and were unwilling to return unless the International's demands were granted. The Trial Examiner found that John Basnett and Millow Ferguson fall within this category and so had not been discriminated against. The respondents did not except to his failure to find that others fell within this group. The International excepted to the finding in relation to Basnett and Ferguson. The respondents, through their supervisory employees, offered cer- tain of the strikers jobs in June, July, and thereafter. Many of such offers were accompanied by the express announcement that a blue card was necessary. In other cases, no such announcement was made. The strikers nevertheless refused to return to work. In view, however, of the widespread publicity concerning the require- ment of a blue card, and the universal understanding that such was necessary, we presume that the offer contained the implied condi- tion. Further, in the absence of specific statements to the contrary by the striking employees, we presume that the employee's refusal was based on his understanding that the offer was conditional on his 168 Matter of Kentucky Firebrick Company and United Brick and Clay Workers of Amer- ica, Local Union No. 510, 3 N. L. R. B. 455, enforced in National Labor Relations Board v. Kentucky Firebrick Company, 99 F. (2d) 89 (C. C. A. 6th, 1938 ) ; Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local 502, 6 N. L. R. B. 171, enforced in National Labor Relations Board v. Stackpole Carbon Company, 105 F. (2d) 167 (C. C. A. 3rd, 1989). 158 The letter quoted in footnote 154 above indicates that in August 1935 the respondents themselves did not consider these employees discharged because of conviction for partici- pation in the Galena, riot. EAGLE-PICHER MINING & SMELTING COMPANY 811 obtaining a blue card. A. discriminatory offer is immaterial. In a prior case we have said : The evidence shows that certain of the employees were re- quested by the respondent to return to work after the lock-out. These requests took various forms, including letters, telegrams, telephone calls, and personal visits by foremen and execu- tives . . . They contain a simple request to return, with no conditions expressly attached. It is the position of the respond- ent that these communications contain its official position and cannot be considered as having any conditions attached to them. This position cannot be sustained. After discussing the general understanding that conditions did actu- ally attach, the Board stated : The inference which it is natural to draw from the . . . tele- grams and letters was that those who received, them were being given an opportunity to return to conditions which were well understood . . . Willingness to reinstate employees only on the conditions above described, conditions which the respondent had no right to attach, is equivalent to absolute refusal to reinstate. With respect to violations of the Act and the remedy therefor, all of the employees in question, whether or not they received a conditional offer of reinstatement, stand on the same footing. 160 Certain employees, however, made statements which require special consideration. Earl Tennis was asked to return to work by Newby in June, but refused, saying that he wished to complete the repairing of a house on which he was then working. Tennis did not claim that he made this statement because of his understanding that a blue ,card was necessary, and in view of his clear rejection of Newby's offer, we cannot find that he would have returned to work under any circumstances. However, in the spring of 1937 Tennis went to Newby's office and asked for a job. Newby asked Tennis whether he was "in on any of their riots, or anything that had taken place." Newby told Tennis to return a few days later for the answer. When Tennis did return, Newby said, "I can't give you a card." On March 3, 1937, shortly before this incident, Tennis' application to the Tri- State Union for a blue card had been rejected. We find that on or about April 1, 1937, Tennis was willing to return to work, applied, but was rejected for discriminatory reasons. 16' Matter of National Motor Bearing Company and International Union, United Auto- mobile Workers of America, Local No. 76, 5 N. L. R. B. 409, 435, order enforced in National Labor Relations Board v. National Motor Bearing Company, 105 F. (2d) 652 (C. C. A. 9th, 1939 ). The offer of reinstatement , to be considered bona dde by the Board, must be unequivocal. Matter of Kuehne Manufacturing Company and Local 1791. United Brother- hood of Carpenters and Joiners of America, 7 N. L. R. B. 304. See also National Labor Relations Board v. American Manufacturing Company, 309 U. S. 629. 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing TV. B. Yin-gst stated that he was and had been un- willing to return to work if he had to join the Blue Card Union and give up his International membership. Such a statement does not disqualify him. John, Basnett testified at the hearing that his posi- tion had been and still was that he would not return to work unless the International was recognized as exclusive bargaining agent. Millow Ferguson admitted at the hearing that in June 1935 he told a foreman he would not return to work until the strike was settled. Viewed in the light of all circumstances, however, we do not believe that Basnett and Ferguson intended these statements literally. Both of them had applied for work, Basnett early in 1936,161 and Fergu- son in July 1935. Basnett also applied for a blue card in order to obtain work, but his application was rejected. We find, therefore,. that Basnett and Ferguson were not unwilling to return to work even if the conditions they testified to were not fulfilled, and that their statements do not disqualify them.'62 As we have described above, at the several conferences with Potter after July 5, 1935, representatives of the International sought settle- ment of the strike and a return to work. Further, a substantial number of claimants individually sought reemployment. On the basis of all the testimony, as well as these specific indications, we find that, except as found above, the claimants were at all times after July 5, 1935, willing to return to work in the absence of illegal conditions.168 (f) Persons claimed to have been incapable, because of ill health, of working at all or some times after May 8, 1935 The respondents claim that certain claimants have been in ill health- and incapable of working at all or some times since May 8, 1935. At the outset, it should be noted that the respondents' counsel stated at 161 Prior to this, DeMier had requested Basnett to ,(,turn to work and told Basnett a blue card was necessary . Basnett refused expressly on the ground of the necessity of a blue card. 112 See National Motor Bearings Company and International Union, United Automobile Workers of America, Local 442. 5 N. L. R. B. 409, where the Board stated : "Many of the employees testified that they would not return to work unless the respondent recognized and bargained with the U. A. W. This appears to be the position adopted by the U. A. W. . . . In view of the respondent's announced position with regard to the return of its employees to work, it is not necessary to consider the effect of this attitude on the part of the men." See also Matter of Lindeman Power and Equipment Company and International Association of Machinists, 11 N. L. R. B. 808. where the Board said, "Although Campbell and Kroun testified at the hearing that they would not return to the respondent's employ as long as the Union's strike against respondent continued, we do- not consider this conclusive. . . . Such testimony cannot be regarded as an unequivocal assertion that the men would not have returned had such an offer been made. Rather, it was the type of statement which any union member . . . would make if publicly questioned concerning his probable course of action with respect to working during the, 11 pendency of a strike. . . . lea "Nor is it an answer to say that they were striking and would not have applied in any event." Matter of Carlisle Lumber Company, cited above. EAGLE-PICHER MINING & SMELTING COMPANY 813 the hearing, in connection with these claims of disability, that "My point is that our indication of some disability does not mean that the man has come up and been refused on account of that disability or necessarily that he would be refused upon application on account of that disability." It is in the light of this statement that we turn to a consideration of these claims. W. H. Allen testified, and we find, that he became ill on June 1, 1937, was operated upon July 6, 1937, and did not recover completely until March 1938. At all other times, he was in good health and capable of working for the respondents. Otto Anderson testified, and we find, that he suffered from lead poisoning on and after May 1935 and has at all times been incapable of working for the respondents. Joe Ballard testified, and we find, that he was blind in one eye. His eyesight was thus impaired while working for the respondents and it had not grown any worse at the time of the hearing. We find that Ballard has not been in such ill health as to justify the respond- ents' claim that he was at any time unemployable. Theodore Bennett was blind in his left eye and had always been so while working for the respondents. We find that Bennett has not been in such ill health as to justify the respondents' claim that he was at any time unemployable. Campbell testified that the respondents' records show that E. E. Browning had an "anomalous back condition" and that this had been shown in Browning's last physical examination. Browning was permitted to work after the 164 Campbell explained that an "anomalous back condition" meant that a person had six lumbar vertebrae instead of five. He admitted that many with such a condition were fully capable of doing their work. We find that Browning has not been in such ill health as to justify the respond- ents' claim that he was at any time unemployable. William Cagle was 72 years old at the time of the hearing. No other disability is assigned and the respondents, before and after the strike, employed persons who were over 60 years old. We find that Cagle is in good health and has at all times been employable. 164 George and Campbell both testified that new and more rigid physical requirements had been put in effect before May 8, 1935, but that nevertheless, men then employed who did not fulfill these requirements were kept on. If such employees, however, quit their jobs, they were required to meet the higher standards on their return . Campbell testified that he considered the strike as such a voluntary absence. The weight of this testimony dis- appears, however, before Campbell's admission that it was not until 1936 that those em- ployees who applied at the mills and mines to resume work were subjected to physical examinations at all, and that until 1930, no rustling cards whatsoever were refused regardless of physical examinations . It thus appears that had there been no blue card requirements so that these employees could apply on resumption of operations in June 1035, they would have been subjected to no physical examination and their "disability" would have been no bar. In any event , we hold that to allow the respondents to penalize striking employees would be contrary to the purposes of the Act. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Claude Dalton applied for work after having obtained a blue card, in August 1935. He was given a physical examination which George testified Dalton failed. The respondents did not specify the nature of the alleged disability nor did they produce the record of the re- sults of the physical examination , and on rebuttal Dalton denied that he had been or was in ill health . We conclude that the re- spondents have failed to establish that Dalton was or is disabled, and we find that he is and at all times has been employable. Edward Doty was 66 years old at the time of the hearing. No other disability is assigned by the respondents . For reasons similar to those discussed in connection with Cagle above we find that Doty is and at all times has been employable. Fred Foster sustained a broken arm on or about December 15, 1937, and was unable to do any work for approximately 8 weeks thereafter. At all other times he was in good health and capable of working for the respondents. Mack Hanks was claimed by the respondents to be "unemployable on account of physical condition ." There is no evidence in the record of any illness or disability suffered by Hanks and we find that he was in good health and employable on and after May 8, 1935. Curtis Harbaugh obtained a blue card and applied to Leonard Vaughn for reinstatement in September 1936 and was given a physical examination . George testified that Harbaugh failed to pass. The examination records were not produced, and Harbaugh denied that he had failed to pass. We conclude .that the respondents have failed to establish that Harbaugh was or is disabled, and we find that he is and at all times has been employable. The respondents claim that G. Marion Headley is unemployable because he made "10 or 11 reports" concerning a back injury. Camp- bell admitted that such reports were made before the strike. They did not militate against Headley's continued employment until the strike. We find, therefore, that Headley's health has not been such as to preclude his employment by the respondents. W. E. Honeywell died on February 16, 1938, during the hearing. He had been suffering from a cancer and his physcian testified, and we find, that Honeywell was in ill health and incapable of employ- ment after December 1, 1936. Recie F. Jones had a deformity of the right shoulder which he had had since early youth . The deformity was existent while he was employed by the respondents, and it had not grown worse since May 8, 1935. At the time of the hearing he was employed as a black- smith for the W. P. A. We find that Jones' disability was not such as to render him unfit for the type of work at which he was engaged on May 8, 1935. EAGLE-PICHER MINING & SMELTING COMPANY 815 Orley Martin suffered from heart and stomach trouble and went to the hospital on August 10, 1936. He was not in good health at the time of the hearing. We find that Martin was disabled and in- capable of employment by the respondents at all times after August 10, 1936. Chauncey Mitchell was 65 years old. In his testimony Vaughn described Mitchell as "a cripple with a bad leg." There is no evidence that this disability did not exist while Mitchell was employed by the respondents in 1935, nor , as stated above, can we find that his age disqualified him. We find that Mitchell 's physical condition is not such as to preclude him from employment by the respondents. James M. Roper worked for another operator in the Tri-State area after the strike and until August 19, 1935, after he obtained a blue card. Thereafter he developed a brain tumor which was pro- gressive. We find that at all times during which Roper would have been entitled to back pay he was in ill health and incapable of employment and that he is not now capable of employment. Fay Stone was injured on August 8, 1937, while working in Ari- zona. He smashed one rim of his pelvis bone , was still walking with a limp at the time of the hearing, and , when asked whether he could do the work formerly done for the respondents , testified "Well, I could do some I done here , yes." He sued his Arizona employer for compensation for a "partial , permanent disability." We find that Stone was in ill health and incapable of employment at all times after August 8, 1937. James C. Thompson suffered an eye injury on or about July 8, 1936. Since that injury he has been blind in one eye. He testified that the vision in this eye was impaired to some extent while working for the respondents before May 8, 1935 . However, unlike the per- sons discussed above who were blind in one eye , Thompson's dis- ability had become worse after his employment by the respondents, and further, in view of his testimony that after his injury , he was laid off by two other mining operators because of his eye condition, there is evidence that his disability affected his work. We find that at all times after July 8, 1936 , Thompson was incapable of doing the work at which he had formerly been engaged by the respondents. William Van Treece testified that before May 8, 1935 , he was struck in the eye by a rock while working for the respondents and that since then his eyesight and hearing have been defective . Since it does not appear when Van Treece's injury originally occurred, or that he had been employed by the respondents for any substantial length of time while suffering from his disability , and since it is further inferable from Van Treece's testimony that his condition has grown worse since May 8, 1935, we find that Van Treece is and has 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been at all times after May 8, 1935, incapable of working for the respondents. The respondents' medical chart, based on physical examinations prior to May 8, 1935, reveals a positive serology for Charles Ward. Campbell could not recall when Ward's examination took place, but he admitted that although the condition was discovered before the strike, Ward was nevertheless continuously employed by the re- spondents until May 8, 1935 . Under these circumstances , the re- spondents cannot claim that Ward's disability was such as to render him unemployable , and we find that it was not such. Byron Warmack, according to Campbell , has "open inguinal rings, which are equivalent to potential hernia ." Campbell admitted that this condition was disclosed by an examination sometime prior to May 8, 1935, and that Warmack was nevertheless retained in the respondents' employ. In rebuttal , Warmack testified , and we find, that he has had no abdominal difficulties since May 8, 1935, although since that date his employment elsewhere has at least in part in- volved the lifting of planks. We find that Warmack's health has not at any time since May 8, 1935 , been such as to render him in- capable of working for the respondents. P. L. White was 66 years old at the time of the hearing. Campbell testified that White had in 1932 been listed as a poor physical risk, since he obtained only a D rating , the lowest a person can receive and obtain employment. Not only was White employed until May 8, 1935, but a rustling card, entitling him to employment, was made out for him when the respondents resumed operations in June 1935. There is no evidence , and we cannot presume, that mere passage of time has disabled White. We find that White has at all times after May 8, 1935 , been capable of employment by the respondents. J. E. Wilson testified that sometime before the strike, he suffered from lead poisoning, that he was laid off for a month as a result, and that thereafter he resumed work for the respondents until May 8, 1935. There is no evidence that Wilson was disabled after his lay-off, and the fact that he was reemployed by the respondents until the strike is plain indication to the contrary. We find that Wilson was capable of employment at all times after May 8, 1935. Elmer Wood went to a hospital for an operation on August 9, 1937. The record does not show when or if he recovered . Campbell testi- fied that Wood's physical examination , made at sometime before May 8, 1935, showed Wood to have high blood pressure and a D rating. He was nevertheless employed after the examination and until the strike. We find that Wood was at all times capable of employment by the respondents up to August 9, 1937. Floyd Woolever went to a tuberculosis hospital on or about May 25, 1935, suffering from lung hemorrhages . We find that at all times EAGLE-PICHER MINING & SMELTING COMPANY 817 after May 25, 1935 , Woolever was incapable of employment by the respondents. Cecil Yocum obtained a blue card and applied for work in Au- gust 1936. He was given a physician examination . George testi- fied that Yocum failed the examination because of a back injury. In the absence of any denial by Yocum, we accept George's testi- mony and find that Yocum was incapable of employment by the respondents on and after an unspecified date before August 1936. We find that except as stated above, and except as to those claim- ants whom we have excluded on other grounds and concerning whose health we have therefore made no findings, all claimants have on and after July 5, 1935, been in good health and capable of em- ployment. (g) Persons concerning whom the respondents made claims of incompetence The respondents claim that the employment records of Roy May- field, W. S. Fulkerson, and Ed Blackburn were such that they would in any event have been refused employment. In respect to Roy Mayfield, the respondents urge that he was given to playing practical jokes on his fellow employees and dropping rocks on an employee named Charles Halsey. Frudenberg testified that 5 or 6 months after the strike began Halsey informed Fruden- berg that Mayfield had, prior to the strike, dropped rocks on him, had hidden tools and had "in other ways made it very disagreeable" for the other employees. Frudenberg further testified that when Mayfield subsequently asked him for a recommendation, Mayfield admitted these activities and that Mayfield said that "he and others were going to run things the way they wanted, and that they had the world by the tail." Frudenberg testified that he then told May- field that "I never wanted him to work any place that I had any jurisdiction." Mayfield, who had actively picketed during the strike, denied that he had engaged in the activities claimed by Campbell. He testified that he had been employed by the respondents for 7 years prior to the strike, that he had asked Frudenberg for a job in' July 1935 but had been told that a blue card was necessary, and that he had applied to Campbell for a rustling card but Campbell referred him to Frudenberg, who refused to assist Mayfield. Mayfield also denied that Frudenberg had made any mention of these alleged incidents, or that the matter came up in the conversation at all. A considerable degree of improbability casts immediate doubt on the respondents' claim concerning Mayfield's alleged misconduct. Such improbability derives from the time of Frudenberg's purported 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discovery of the matter. Frudenberg claimed that Halsey did not call the matter to his attention until 6 months after the resumption of operations and, therefore, 6 months after Mayfield had worked for the respondents or could have engaged in such misconduct. There is no apparent reason why Halsey, supposedly a frequent target of rocks dropped from a 25-foot height, should have chosen to report the matter 6 months after Mayfield had stopped working for the respondents, and at a time when, to all intents and purposes, May- field was permanently divorced from the respondents. We are un- able to find that there could have been any stimulus or provocation for Halsey to become concerned over the matter, if it were not fictitious, at so late a date. Further, since Frudenberg admitted that there was a foreman over Mayfield's department, it is difficult to believe that Mayfield could have behaved as alleged for several weeks before the strike without either the foreman or Halsey making some prompt report. Finally, the conflict is between Mayfield's specific denial on the one hand and Frudenberg's general claim of an alleged report and of hearsay evidence concerning an alleged happening. Halsey himself, the purported target and complainant, was not called by the respondents. Under these circumstances, and in the light of the respondents' conduct as a whole, we do not believe that Mayfield was refused re- employment because of his alleged misconduct. We find that May- field was refused reinstatement because of his membership in and activities on behalf of the International, and because of his failure promptly to obtain a blue card. W..S..F+ulkerson went out on strike on May 8, 1935, but did not join the International until on or about May 10, 1935. He had been employed by the respondents for 10 or 11 years before the strike. Fulkerson testified that in October 1935, he went to his ground boss in an effort to obtain employment, that his ground boss referred him to Campbell, and that Campbell told him that a blue card was neces- sary. Thereafter, Fulkerson applied for a blue card several times but was rejected. About October 1936, Fulkerson finally was admitted to membership in the Tri-State Union, and he immediately applied to Campbell for work. Campbell, according to Fulkerson, told Fulker- son that there was "evidence in the record" that Fulkerson "was active in the strike and that he wouldn't issue me a rustling card, said he never would issue one." Campbell testified that Fulkerson's compensation record was 'un- satisfactory" in that he had reported five injuries, and that "this man had had a compensation claim which I had handled, and we didn't get along very satisfactorily on it. I didn't like his attitude." Camp- bell testified that it was for this reason that he had refused Fulkerson a rustling card in October 1936. EAGLE-PICHER MINING C SMELTING COMPANY 819 Campbell admitted, however, that the compensation matter oc- curred before the strike, and that he nevertheless issued a rustling card, albeit "very reluctantly," to Fulkerson after the alleged diffi- culties. Fulkerson continued to be employed by the respondents until the time of the strike. It thus appears that Campbell did not consider Fulkerson's attitude concerning the compensation matter serious enough to bar him from employment until after Fulkerson had joined the International and gone out on strike. We find, therefore, that the respondents refused to reinstate Fulkerson for the reason that he was a member and active on behalf of the International and that he had failed promptly to join the Tri-State Union. Somewhat different considerations impel us to a contrary conclu- sion in the case of Ed Blackburn. Blackburn testified that in Feb- ruary 1936, he applied to Campbell for reemployment but that Camp- bell refused, calling Blackburn a "radical and a quitter." He further testified that, before refusing him, Campbell first consulted a book. Cross-examination elicited the fact that the book was "similar" to one produced thereupon by the respondents. This book contained only Blackburn's employment record, which showed Blackburn had left his employment with the respondents a great many times at short intervals and began work at other mines. Next to his name in the book is a notation, dated November 1, 1934, written by Campbell, stating "do not renew-moves around." The notation referred to renewal of a rustling card. Campbell testified that in February 1936, he refused Blackburn a rustling card because Blackburn was an "un- steady worker" and "moved around too much." Thus the record shows that sometime before the strike Campbell had determined to refuse Blackburn a rustling card, and that at the first opportunity, Campbell did so refuse. Under such circumstances, where the cause was noted before the strike and was operative throughout, we find that Blackburn was refused reemployment for the reason that he was an unsteady employee and not because of Inter- national membership or activities. F. The discharges The discharges of Joseph Mallatt, Timothy Rayon, and Floyd Turbett 165 On the resumption of operations on July 17, 1935, Joseph Mallatt was reemployed by the respondent Mining Company at the Galena smelter. A few days later, John Ross, a superintendent, told Mallatt that the latter was required to obtain a blue card. Mallatt thereupon '- Orlay Dodd also claimed that he was discriminatorily discharged after the strike. Since we have excluded him on other grounds, we do not pass upon this claim. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD joined the Tri-State Union, turning his International membership card in as was required by the former organization. On September 15, 1935, he was discharged. On direct examination, Mallatt testified that after his discharge he went to Joe Newby to find out why he had been discharged and Newby said, "I understand you ... was on as a spy down there [at the smelter] for the International." On cross- examination, when confronted with a. questionnaire he had filled out before the hearing in which he attributed this remark to Ray Hallows, Mallatt testified that Hallows also accused him of being a spy. Mal- latt at the hearing denied that he had been an International spy and stated that he had not been a member of the International Union.. after July 1935. Newby denied that he had accused Mallatt of being a spy. He testi- fied that he had discharged Mallatt on advice of Campbell since Mallatt had been stirring up lead poisoning litigation in the smelter and also because Mallatt had laid off for a week without notifying his, foreman. Campbell corroborated Newby's testimony, testifying that he had notified Newby to discharge Mallatt because Mallatt had been "agitating" in regard to lead and silicosis suits. On rebuttal, Mallatt was recalled and denied that he had ever discussed lead poisoning suits or other litigation with his fellow em- ployees. He admitted that he did not report to work for several days, and testified that he had laid off in order to attend a funeral and. to dig a neighbor's grave. On rebuttal, he further testified that he had spoken to Newby. at a Tri-State Union meeting, where Newby told Mallatt that a complaint had been turned in against the latter since he "was on the battle line down there the 28th of June, in front of the smelter." Mallatt testified that he denied this, but that Newby told him that "I can't put you back to work until that fellow releases that charge against you." In the course of this rebuttal Mallatt denied that lie had ever testified that Newby called him a spy, and admitted that Newby had not so accused him. Thus it appears that Mallatt was not a consistent witness."' Nor does it apear likely that the respondent Mining Company should have. discharged Mallatt for his International membership after he had. resigned and joined the Tri-State Union. There is no evidence that Mallatt was in any way active in the strike or thereafter, or that he was engaged in subsequent union activities which might impel the respondent Mining Company to discharge him. We find, therefore, that the respondent Mining Company, by discharging Mallatt, did not discourage membership in a labor organization by discrimination in regard to hire and tenure of employment. lee On one point in his testimony concerning a conversation with Board' s counsel, the latter was compelled to make a statement denying Mallatt's accuracy. EAGLE-PICHER MINING & SMELTING COMPANY 821 Timothy Rayon 167 had been employed for 6 years prior to the strike at the Joplin smelter. He was a member of the International and par- ticipated in the strike. He testified that early in September, he applied to Walter George for reemployment and that George told him "to take the [physical] examination, and I would have to join the blue card union." Rayon passed the examination, and George, according to Rayon, then directed him to go to Kelsey Norman's office to get a "temporary permit to come back to work." Rayon did so, and on Sep- tember 9, 1935, returned to work. He had worked for only 7 shifts when George summoned him to his office and told him that "he would have to let me. off, that I was turned down at the blue card union, and Mr. Vaughn said I could not work any longer without a blue card."' Vaughn testified that he recalled no one named Rayon and denied that he had told George that Rayon or anyone else had to be dis- charged because of his rejection by the Tri-State Union. George, testified that in his conversations with Rayon he did not mention the Tri-State Union. He further denied that Rayon was discharged at all. We cannot, however, accept the inference sought to be raised by- the respondents that Rayon quit voluntarily. It is unlikely that an employee who had been working for the respondents for 6 years. prior to the strike would, subsequent to reinstatement, suddenly find the work not to his liking after only seven shifts. Rayon's subse- quent earnings show that lie received nothing but occasional relief until 1.937, so that we cannot infer that he left for a. better job. In the light of George's unsatisfactory denial, in the liglit of the fact that Rayon was discharged coincidentally in time with renewed efforts to coerce employees at the Joplin plant into the Tri-State Union as described above, and in the light of the respondents' entire course of conduct with respect to requiring membership in the Tri- State Union, we find that Rayon was discharged because of his failure to become a member of the Tri-State Union. Floyd Turbett had been employed by the respondent Lead Com- pany at the Joplin plant since 1929. Prior to the strike he was an assistant superintendent but his work, in turn, was subject to more or less constant supervision. After the resumption of operations, he became foreman of the afternoon shift of the insulation depart- ment. During this shift he was in complete charge of supervising the work and the employees under him. On September 9; 1935, Turbett, who had not yet joined the Tri-State Union, was discharged by the respondent Lead Company. "'Rayon's name appears in the complaint as Jim Rayon . A motion to correct this was granted without objection. 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondents contend, and the Trial Examiner found, that Turbett was discharged for neglect of duties. We agree, and since the International Union did not except to this finding, it is not necessary to discuss the evidence. We find that Floyd Turbett was discharged for cause and not on account of his failure to join the Tri-State Union. The discharge of John R. Sheppard During the hearing, on a supplemental charge duly filed, the com- plaint was amended to allege that on or about November 15, 1935, the respondent Lead Company discharged John R. Sheppard for the reason that Sheppard "had expressed dissatisfaction with in- structions he had received from the said respondent requiring him to coerce subordinate employees upon his staff into joining the said Blue Card Union and had openly expressed his lack of sympathy for the coercive policy of said respondent with respect to said Blue Card Union." We have already found above that on and after August 23 and until September 26, 1935, Sheppard had fought vigorously against the attempts of the Tri-State Union and of the respondents, through Potter, Vaughn, and MacGregor, to coerce the laboratory employees under Sheppard to join the Tri-State Union. Sheppard had ques- tioned the authority of Potter and Vaughn in this matter; had pro- tested against the respondents' attitude; had sent a petition to Mac- Gregor, signed by the laboratory employees, opposing application to the Tri-State Union ; had so opposed the respondents' policy in the matter that MacGregor came to Joplin from Cincinnati; had had vehement arguments with both Vaughn and Potter over the plan to coerce his laboratory employees; and had been reprimanded by Mac- Gregor for keeping written records of the entire incident. These facts having been found on the basis of virtually undisputed evidence, the sole question remaining is whether or not Sheppard was dis- charged because of these incidents. The respondents urge that Shep- pard was discharged for.inefficiency, for failure to keep discipline among the employees of his staff, for his unsatisfactory conduct of the research department, for his dictatorial and intemperate attitude toward his subordinates, and for his overly technical supervision of laboratory reports. Sheppard, a university graduate in chemistry, began to work for the respondent Lead Company in the research department at Joplin in 1926. In 1927, he became acting director of research, and there- after, at times, director of research. On or about August 1, 1935, Dr. Shaeffer, the director of research, resigned to assume the presi- dency of Franklin and Marshall College, and Sheppard assumed EAGLE-PICHER MINING & SMELTING COMPANY 823 Shaeffer's duties. In 1926, Sheppard's monthly salary was $350; in 1927, $400; in 1928, $483.83; and by 1931, his salary reached $591.66 per month. Between 1931 and 1933, his salary was reduced at vari- ous times, finally reaching $450 per month, where it remained until Sheppard was discharged. The respondents do not assign as the reason for these reductions any fault of Sheppard. Rather, the salary decreases were due to economic factors brought on by the de- pression. During-this period, the Lead Company reprinted and dis- tributed several of Sheppard's papers which had been prepared for the respondent Lead Company or which Sheppard had read to chem- istry organizations. On or about November 15, 1935, Sheppard was called to the Cincinnati office of the respondent Lead Company and was notified of his dismissal, effective as of December 1, 1935. ' The function of the research department is to investigate and de- velop new products from lead, zinc, and their byproducts, and to in- vestigate and develop new methods of manufacturing such products and byproducts. The duty of the research director is to plan and work out investigations suggested by other departments of the Lead and Mining Companies, and also to initiate research of value to the Companies, to start and guide the research chemists in their experi- ments, to analyze with them the results and possible conclusions, and to supervise the drafting of reports for submission to the home office of the Lead Company. The respondents adduced their evidence concerning Sheppard's discharge through two witnesses, R. W. McMullen, who replaced Sheppard, and Harold Harner, head of the storage-battery labora- tory during the period in question, and, after Sheppard left, assistant research director. We here summarize the testimony of these two witnesses. McMullen testified that "in the fall of 1935," or "about October 1935," he was retained by the Lead Company as a "consulting chemi- cal engineer." He received his appointment from Potts, the Lead Company's general manager in Cincinnati, and thereafter consulted with the management committee composed of Bendelari, president, MacGregor, vice president, and Hummell, secretary-treasurer. Mc- Mullen testified that the committee desired to move the research department to Cincinnati and to "improve the efficiency of the department." McMullen then went to Joplin, where he remained for 2 or 3 weeks, reading the department's past reports, talking to the individual chemists, and otherwise investigating the operation of the laboratory. Thereafter, McMullen submitted a report addressed to MacGregor in Cincinnati, and dated November 13, 1935. The report is "of my trip to Joplin to render an opinion on the advisability of moving the Research Department to Cincinnati and also to in- 247383-40-vol. 16--53 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vestigate general conditions." It was directed chiefly toward the former question, and recommended such a move because of the lost efficiency occasioned by geographical considerations.' 68 McMullen re- ported that "the personnel of the Research Department consists of high-grade intelligent men whose present morale is extremely low since they consider a great deal of their- effort is wasted"; that "By the application of business expediency and a broader point of view, the constructive work of the Research Department could be doubled"; and that the work in the department is "very inefficient. The actual work done by the laboratories is not properly supervised. Each laboratory head carries on his problems, holding to the exact detail of a written instruction, without helpful suggestions or constructive criticism. The criticism usually has more to do with the form and accuracy of the technical detail than the value of the new product or process." In his report, McMullen did not expressly relate Sheppard to these alleged faults but the general tenor of the report was that the situation would be remedied by moving the department to Cincinnati. In his testimony at the hearing, McMullen further criticized Shep- pard, stating that the relations between the employees and Sheppard were "very bad"; that every employee, without exception, criticized Sheppard during McMullen's investigation; and that the research reports were "too verbose" and technical, and "too involved for the average person to read." McMullen testified that subsequent to his submission of the written report, he "amplified that report in several oral conferences" with the management committee. At these con- ferences, according to McMullen, he recommended the dismissal of Sheppard. Thereafter, the management approved McMullen's re- port and offered McMullen the position of research director. McMul- len testified that he accepted on condition that Sheppard be removed, and the committee agreed. On December 1, 1935, McMullen assumed his duties as research director of the Lead Company at Joplin. Harner's testimony was directed chiefly towards Sheppard's per- sonal relationship with his subordinates. Harner testified that in 1927, when Sheppard assumed charge of the laboratory, Sheppard was so dictatorial and made such obscene remarks that Harner left the laboratory and , worked elsewhere. In 1930, Harner returned, having been rehired by Sheppard. Harner testified that the employ- ees had continual arguments with Sheppard over "whether the commas were right" in the reports ; that when Harner returned in 1930, the situation "wasn't as bad as before"; that Sheppard "was accustomed to pound the table vigorously and talk in a loud tone of voice. He enjoyed `hooking' somebody on any mistake they made"; and that Sheppard treated his subordinates "as though you were a 118 The department was still located in Joplin at the time of the hearing. EAGLE-PICHER MINING & SMELTING COMPANY 825 machine sitting there and he was another machine tearing up the report in an absolutely mechanical manner." Harner could not recall, however, whether he had told McMullen anything about Sheppard "specifically" when McMullen was investigating. Sheppard denied that he had any difficulties with his subordinates; he expressly denied the obscene and intemperate language attributed to him by Harner ; he denied that he had received any complaints, either from the management or from his subordinates. On the con- trary, he testified, and we find, that on his departure on November- 30, 1935, the entire laboratory staff presented him with an electric clock and that Harner, with whom his relations had always been friendly, made the presentation speech. Further, the Board's counsel submitted in evidence many Christmas cards sent to Sheppard by the members of the laboratory staff both in 1936 and 1937, long after Sheppard had left the respondent Lead Company's employ. Included among these cards was one from "Harold and Esther Harner" on which Harner had written a special greeting. In view of the testimony of Harner and McMullen concerning the situation in the laboratory, we regard these cards as being relevant and of some significance. Moreover, it is undenied that between 1933 and 1935 Fred Clearman and Percy Ebert, two of Sheppard's subordi- nates, specifically expressed appreciation to Sheppard for the latter's method of handling reports ; that MacGregor, who supervised the research department, expressed approval of the reports; that several of these reports were reprinted and published by the respondent Lead Company; that in 1928 when, according to Harner, conditions were at their worst, MacGregor brought the technical salesmen to the lab- oratory for 10 days, stating to Sheppard that "he wanted them to get the viewpoints that I [Sheppard] implanted in my own men"; that at the same time, MacGregor wrote Sheppard that "I cannot speak too highly of the organization of the operations in your various departments. It certainly is a pleasure to work with you. . . ," 169 that often thereafter, MacGregor "commented favorably" on the department's organization ; and finally, that when Sheppard was discharged, MacGregor, the company executive to whom McMullen's report had been addressed and who had the most direct contact with the laboratory, told Sheppard that the dismissal was contrary to his recommendation. Floyd Reed, a witness for the respondents, who, worked in the laboratory from 1927 to 1934, testified that his relations with Sheppard in the course of his research work were "very friendly"' and that he did not feel that Sheppard misused him. Frederick Clearman, also a witness, called by the respondents, worked in the 160 Although this letter is remote In time, we deem it relevant in view of Harner 's testi- mony that conditions were, during this period, so bad that Harner left ; and that on his return in 1930, conditions had improved. 826 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD laboratory as chief research metallurgist from 1930 to 1933, and testified that he had always been very friendly with Sheppard and that he liked Sheppard. Under all the circumstances, we are impelled to reject the respond- 'ents' evidence concerning Sheppard's faults and difficulties. Not only does the direct testimony adduced thereon fail to establish his inefficiency and improper conduct,' 70 but the circumstances of Shep- pard's employment history points to the contrary. We are unable to believe that Sheppard could have been as inefficient, unpleasant, and unsatisfactory from 1927 until 1935 as testified to by Harner and McMullen without complaints arising long before 1935. Had Sheppard had all the faults attributed to him, it is incredible that he should have been retained for 8 years, during the early part of which period his salary was consistently raised and throughout which period his responsibilities were increased. The respondents contend, however, that the actual fact of Shep- pard's ability is irrelevant since the cause of Sheppard's discharge was McMullen's report upon which the respondents could properly =rely.171 Apparently adopting this contention, the Trial Examiner .-recommended dismissal of the complaint in so far as it alleged that ,Sheppard was discriminatorily discharged. The Trial Examiner based his recommendation on two chief grounds: (1) that by Sep- tember 26, 1935, Sheppard had finally complied with the respondents' orders concerning the Tri-State Union, yet Sheppard did not cease to be an employee of the respondent Lead Company until November 29, 1935; and (2) that, regardless of the basis of McMullen's report, the respondents relied upon it and to sustain the allegations of the complaint with respect to Sheppard, "it would be necessary to find that the sending of McMullen to Joplin was with the preconceived "intent to have McMullen report unfavorably on Sheppard and then discharge him." Under analysis of the evidence, however, these :grounds disappear. The chronological hiatus between Sheppard's resistance to the "Tri-State Union and his eventual discharge is more apparent than real. As described above, Sheppard first opposed Vaughn's direc- tions that Sheppard's subordinates be instructed to join the Tri-State Union on August 27, 1935. After appeals to MacGregor, Sheppard's -opposition was apparently successful and on September 6, the lab- oratory employees were notified that they were free to remain out 170 Harner's inconsistencies concerning the Tri-State Union have been described above and throw considerable doubt on his credibility . Similarly , the circumstances under which McMullen wrote his report, as described below, deprive the report-which itself does not deal specifically with Sheppard-of what weight it might otherwise have in establishing the fact of Sheppard's relationship with his subordinates. 1'71 Of course, the absence of a basis for such report and so for the cause of the discharge As some evidence of a lack of bona fides, as described below. EAGLE-PICHER MINING & SMELTING COMPANY 827' of the Tri-State Union. About September 17, 1935, the respondents. renewed their attempts to have Sheppard; coerce his subordinates;. Sheppard again resisted and at first, even defied Potter's. authority over him. On September 26 Sheppard finally submitted, but at the same time he protested the respondents' course to Potter and Mac- Gregor. Within the next few days, Sheppard notified his employees that they were required to join the Tri-State Union. Little time elapsed between Sheppard's resistance and the respond- ents' initial steps to replace him. McMullen was vague and uncertain concerning the precise date when he was retained by the manage- ment committee. On direct examination, he stated that he believed he was hired "during October." When asked for the specific date on cross-examination, McMullen said that "I would not be sure of the date," After conferences with the management, he spent 2 or 3_ weeks investigating at Joplin. His report was completed on Novem- ber 13. It is evident, therefore, that McMullen was retained within not more than 2 weeks after Sheppard's difficulties in regard to the Tri-State Union. 172 Nor are we able to find that McMullen's investigation and report were the cause of Sheppard's discharge. Although McMullen testi- fied that the matter of Sheppard's removal had never been mentioned in October by the management, he nevertheless. knew that he was to investigate Sheppard. At the time McMullen was retained he was "virtually unemployed." In connection with McMullen's purposes in going to Joplin in October, the following testimony was elicited after McMullen was asked whether one. of the purposes was that McMullen might be permanently employed by the respondent Lead Company : A. (by McMullen) : That might or might not be the case. It was not contingent on the first trip. Q. (by Mr. Wolfe) : But you had that in mind, when you left' Cincinnati and came to Joplin? A. It was possible. Q. And you were desirous at that time of obtaining a perma- nent situation with the company, if you could work out the de- tails with them? A. If the position was satisfactory, yes. Q. Didn't you know during the time that you were having these preliminary discussions with the gentlemen in Cin- 172 The International Union contends in its brief, and we agree, that what lapse of time did occur is still less significant under the peculiar circumstances of the case. Sheppard's. Job was one requiring expert technical as well as executive ability. Shaeffer, the re- spondents' other top laboratory employee, had left a short time before. Unlike ordinary- employees, Sheppard was not easily replaceable and some time was necessarily consumed' before a satisfactory successor could be found . As described immediately below, McMullen, was at this time already chosen as Sheppard 's successor. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cinnati, and after you came down here, that there was a good possibility of you taking charge down here? A. There was a possibility, but it was not all settled ... The surroundings of the position, the work that was required of the position, were all unknown to me. I had to find out what they were before I could accept it. 173 We find that before McMullen went to Joplin at all, the respondent Lead Company had determined to hire McMullen and discharge Sheppard. Further, serious chronological difficulties militate against accept- ance of the respondents' contention that they relied on McMullen's report and McMullen's refusal to work with Sheppard. Sheppard's testimony is undenied that MacGregor notified Sheppard on or before November 15, 1935, that the latter's connections with the Lead Com- pany were going to terminate.. Yet McMullen did not complete his investigation and written report until November 13. As described above, McMullen testified that he offered more specific criticism of Sheppard and recommended his removal at conferences thereafter in Cincinnati. Following these several conferences, the management committee met and adopted McMullen's report. Then MacGregor notified Sheppard to come to Cincinnati, where Sheppard was told of his discharge. It is fair to assume that McMullen's report, dated November 13, was submitted sometime thereafter, and that the vari- ous conferences consumed still further time. Under these circum- stances, we find it difficult to believe that Sheppard's discharge on or before November 15, 1935, was based on McMullen's report. Further indication of the respondents' preconceived intent to dis- charge Sheppard lies in the undenied fact that, when McMullen first came to Joplin in October, Sheppard's first contact with him was through Potter. Potter called Sheppard to Potter's office, where the latter introduced Sheppard to McMullen and explained that Mc- Mullen was "looking over" the Lead Company. As described above, Potter was the resident vice president of the respondent Mining Company, while the research department was a part of the Lead Company. Campbell's testimony, coupled with MacGregor's letter to Sheppard described above, established that Potter's only connection with the Lead Company was in respect to labor relations. That McMullen should first have consulted Potter indicates that Mc- Mullen's visit was connected with the problem of labor relations, rather than with any technical problems faced by a department of the Lead Company-with which Potter would be unfamiliar. Finally, neither the person who first got in touch with McMullen, nor the members of the management committee which gave him his 18 Italics supplied. EAGLE-PICHER MINING & SMELTING COMPANY 829 initial instructions or purportedly passed on his report, nor Potter was called upon to testify. In view of all these circumstances and in the light of the respond- ents' course of conduct as disclosed by the entire record, we find that the respondents had determined to discharge Sheppard when they hired McMullen, and that McMullen's subsequent reports were not the moving factors in Sheppard's discharge. The respondents con- tend, however, that the Board. cannot take cognizance of Sheppard's case since, as an officer of the respondent Lead Company, Sheppard is not an employee within the meaning of the Act. We have pre- viously rejected a similar contention, stating : Although anti-union conduct of managerial or supervisory em- ployees has been repeatedly held proof that the employer has engaged in unfair labor practices, it does not follow that man- agerial or supervisory employees are not employees within the meaning of Section 2 (3) of the Act. The statutory definition is of wide comprehension.171 Sheppard is an employee within the meaning of the Act. We find that the respondent Lead Company, by discharging Shep- pard on or about December 1, 1935 '175 discriminated in regard to his hire and tenure of employment, thereby encouraging membership in the Tri-State Union, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Sheppard did not earn any salary or other income after his dis- charge other than approximately $140. In August 1937, he entered into a contract with a Joplin businessman whereby Sheppard agreed to engage in certain research work and the businessman agreed to pay for all necessary expenses. If the experiments lead to any results, Sheppard and the other person are each to own an undivided half interest. Sheppard testified that he was experimenting on the devel- opment of a particular idea which, if successful, would be very val- uable. He "hoped" for success but testified that there was no way to know whether any results would be reached. Other than his expenses and the potential return if the experiments are successful, Sheppard earned no salary or other income by virtue of this agree- ment. The respondents contend that all chemistry work is dependent on future development and that Sheppard has obtained regular and substantially equivalent employment. In view of the extremely spec- ulative nature of Sheppard's present occupation, and in view of the steady and substantial salary which he earned while working for the 174 Matter of Atlantic Greyhound Corporation and Brotherhood of Railroad Trainmen, 7 N. L. R. B. 1189, 1196. 171 The date when Sheppard 's discharge became effective. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent Lead Company, we find that Sheppard has not obtained regular and substantially equivalent employment. G. The alleged refusal to bargain collectively The complaint alleges that the employees of both respondents, engaged in ordinary productive work, exclusive of those engaged in work which is of an executive, managerial, technical, or clerical nature, constitute a unit appropriate for purposes of collective bar- gaining; that the International Union, prior to May 8, 1935, repre- sented a majority of such employeesand that the respondents have' at all times refused to bargain collectively with the International. During the hearing, the complaint was amended to allege that either the unit originally alleged or, in the alternative, the productive em- ployees of each respondent separately constituted appropriate units. The Trial Examiner, in his Intermediate Report; found that the evidence failed to show that the International at any time repre- sented a majority of the employees alleged to constitute either of the alternative appropriate units. He accordingly recommended that the complaint, in so far as it alleged that the respondent had refused to bargain collectively with the International, be dismissed. The Inter- national did not except to these findings or to the recommendation. The evidence fails to establish that the International, on or after May 8, 1935, represented a majority of the respondents' employees in an appropriate unit. The evidence further shows that in the period in question, the International itself was unable to determine the precise extent of its own membership. We find, therefore, that the International Union did not represent a majority of the respondents' employees in an appropriate unit. or units, and that, therefore, the respondents, or either of them, have not refused to bargain collectively with the International within the meaning of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of each of the respondents set forth in Section III D, E, and F above, occurring in connection with the respective operations of such respondent and/or the operations of the other respondent, described in Section I above, have a close, in- timate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce 178 I'll See footnote 12 above. EAGLE-PICHER MINING & SMELTING COMPANY V. THE REMEDY 831 It is essential in order to effectuate the purposes and policies of the Act that the respondents be ordered to cease and desist from certain activities and practices in which we have found them to have engaged. Further to effectuate the purposes and policies of the Act , and as a means of removing and avoiding the consequences of the respondents' unfair labor practices, we shall, in aid of our cease and desist order, order the respondents to take certain affirmative action, more particu- larly described below. We have found that the respondents , and each of them, have par- ticipated in, contributed to, encouraged , authorized, and ratified acts of violence directed against the International and its members. We shall order the respondents to cease and desist therefrom. We have found that the respondents , and each of them, have since July 5, 1935, dominated and interfered with the administration of the Tri-State Union and have contributed support to it, that the respond- ents have at no time ceased dominating and interfering with its ad- ministration , and that the Tri-State Union in fact continues to the present, although now affiliated with the American Federation of Labor under the name of the Blue Card Union. As heretofore found, the respondent Mining Company entered into an agreement on June 8, 1935, with the Tri-State Union, granting to that union at least a preferential shop, excluding International members from employment, and recognizing the Tri-State Union as exclusive bargaining agent. We have found further that although this agreement in terms was with only the Mining Company , it was applied in actual practice by the Lead Company to the latter's employees . We have found that at no time was this agreement repudiated by the respondents . From what has been previously set forth , it is manifest that the contractual rela- tionship which was established on June 8, 1935, and existed thereafter, between the respondents and the Tri-State Union, has been part of the systematic utilization by the respondents of an employer -created labor organization to stifle self -organization among and defeat collective bargaining by employees of the respondents. It is also plain that this contractual relationship and the agreement were instrumentalities adopted by the respondents for supporting, dominating, and interfer- ing with the formation and administration of the Tri-State Union, and the media for otherwise frustrating the employees of the respondents in the exercise of rights guaranteed by the Act. Under these circum- stances, we shall order the respondents to cease giving effect to such written or oral agreement with the Tri-State Union. In addition to requiring the respondents to cease and desist their specific unlawful activities as to the Tri-State and Blue Card Unions, we deem it necessary to make a further order in this respect. Since 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no violation of Section 8 (2) of the Act is alleged, we shall not order the respondents to disestablish the Blue Card Union completely as a bargaining representative of any of its employees. However, we shall order what appears to us to be a minimum requirement if any opportunity for free self-organization is to be afforded the respond- ents' employees : the respondents will be ordered to withhold exclu- sive recognition from the Blue Card Union or any other labor organization of its employees, unless and until such organization is certified by the Board as exclusive representative in an appropri- ate unit ;177 the respondents will also be ordered to withhold recogni- tion of the Blue Card Union as representative of any of its employees unless similar recognition is granted to the International, or unless and until the Blue Card Union is certified by the Board as exclusive representative. We have found that the respondent Lead Company has discrimi- nated in regard to hire and tenure of employment, within the mean- ing of the Act, in discharging Timothy Rayon on or about September 16, 1935, and John R. Sheppard on December 1, 1935. Accordingly, we shall order said respondent to make these employees whole for any loss of pay they suffered by reason of their respective discharges, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages or salary from the date of his discharge to the date of reinstatement, less his net earn- ings 178 during said period. However, inasmuch as the Trial Ex- aminer failed to find discrimination with respect to the discharge of Sheppard, the respondent Lead Company, in accordance with our usual rule '179 will be relieved of paying Sheppard back pay with respect to the period from the Trial Examiner's Intermediate Re- port, August 31, 1938, to the date of our Order. We have further found that the respondents on July 5, 1935, dis- criminated in regard to hire and tenure of employment by discharg- ing and refusing to employ, except upon compliance with an illegal 177 See Matter of Lenox Shoe Company, Inc. and United Shoe Workers of America, 4 N. L. R. B. 372; Matter of Mt. Vernon Car Manufacturing Company, a corporation and Local Lodge No. 1756, Amalgamated Association of Iron, Steel , and Tin Workers of North America, 11 N. L. R. B. 500 ; Matter of Pilot Radio Corporation and United Electric & Radio Workers of America, 14 N. L. R. B. 1084. 178 By "net earnings" Is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United , Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal, or other work-relief projects are not considered as earnings, but as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects. 170 Matter of E. R. Ha$elfinger Company, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760, 767. EAGLE-PICHER MINING & SMELTING COMPANY 833 condition, those of its employees who had gone on strike on May 8, 1935, and were still on strike on said July 5. We have listed in Appendix A all such employees against whom the respondent Lead Company has thus discriminated. Appendix B is a similar list pertaining to the respondent Mining Company. We shall order the respondent Lead Company to offer reinstatement 1R° to their former or substantially equivalent positions to all the striking employees listed in Appendix C, or if no such positions be available, then to positions for which they may be qualified. We, shall also order the respondent Mining Company to offer reinstatement to their former or substantially equivalent positions to all the striking employees listed in Appendix D, or if no such positions be available, then to positions for which they may be qualified. We find below that certain persons, listed in Appendices E and F, have obtained regular and substantially equivalent employment but did not testify that they do not desire reinstatement.181 The respondents contend that only "employees" within the meaning of Section 2 (3) fall within the jurisdiction of the Board for purposes of remedial action, and that those who have obtained such regular and substantially equiva- lent employment are not such employees. While Section 10 (c) provides for reinstatement of "employees," we do not believe that those claimants who have obtained regular and substantially equiv- alent employment thereby became remediless, either for the purposes of back pay or for purposes of future employment by the respond- ents. We shall, therefore, order all persons listed in Appendices E and F to be offered employment in the same manner as the em- ployees are to be offered reinstatement as set out in the preceding and in the following sentences. The offer of reinstatement shall be without prejudice to the employees' former rights and privileges. All, or such number as may be necessary, of the employees presently working for the respondents who were hired after July 5, 1935, the date on which the conditions of employment imposed by the respond- ents became illegal, and whose names do not appear on the pay rolls for the week including May 8, 1935, or were not employed by the respondents during the period between that date and July 5, 1935, shall be dismissed, to provide employment for those to be offered and who shall accept reinstatement. If thereupon, despite such dismissal, there is not sufficient employment immediately available for all of said employees to be offered and who shall accept reinstatement, all. 181 For reasons similar to those stated above, and to those stated in prior cases, we do not believe that the policies of the Act will be effectuated by the Board' s exercising its discretion to bar strikers guilty of violence in this case . Cf. Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219, 387, and cases cited in footnote 158 above. In the case of convictions by the Kansas military court, the accused were not represented by counsel or confronted by witnesses. 191 Persons who were reinstated by the respondents are here excluded. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD available positions, if any, shall be distributed among such em- ployees, without discrimination against any employee because of his union affiliation or activities, following such procedure and system ,of employment as has heretofore been applied in the conduct of the respondents' businesses. Those of such employees for whom no em- ployment is immediately available and those who are reinstated only to positions for which they were qualified but not to their former or substantially equivalent positions, shall be placed on a preferential list and, in accordance with such list, be offered reinstatement in their former or substantially equivalent positions, as such employment be- comes available and before other persons are hired for such work.18' In cases where we have found that . certain employees were dis- criminatorily discharged or refused reinstatement, we have ordi- narily ordered the offending employer to make them whole with back pay, this being an amount equal to what they would have earned with the employer from the date of the discrimination to the date of reinstatement pursuant to our order, less net earnings elsewhere during the same period. The objective is, of course, to restore the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination. Our order in the present case is designed to achieve the same objective, but the peculiar factual situ- ation here presents unusual difficulties in fashioning our remedy so as to restore the status quo. Thus, there were approximately 1,100 employees working for the respondents on May 8, and by July 5, -1935, only approximately 600. Of the 500 not working then, some 350 are claimants in this case, and we have found discrimination as to about 200. We have found above that after July 5, 1935, a sub- stantial number of additional men were put to work, but it is ap- parent from the record that the total pay roll fell a good deal short ,of the 1,100 figure obtaining before the strike. Thus we have the following situation : had the respondents acted lawfully in restaffing their force, there is no certainty that all the claimants found to have been discriminated against would have returned to work, since there were presumably at all times less jobs open than old employees available. It is certainly fair to assume, on the other hand, that a large number of the claimants discriminated against would have returned, but here again, we cannot tell which ones. It does not appear from the record that the respondents followed any set standards, such as seniority, in taking the men back. It does appear that as to most positions, one applicant would be as well qualified as another, since no special skills or abilities are ordinarily necessary. The only discernible standards used seemed to be two : a re- 182 The respondents shall be considered as separate entities for the purposes of this process of reinstatement. EAGLE-PICHER MINING & SMELTING COMPANY 835 quirement of a blue card, and "first come, first served." On this state of the facts, we have no way of knowing which men would. have been reinstated had the respondents acted legally-how many non-claimants, how many claimants whose cases we are dismissing,is3 how many claimants whose cases we are sustaining. We might with some logic order the respondents to reconsider their course of reinstatements, putting aside the discriminatory factors which they have employed, and to determine now which ein- ployees they would have taken back after July 5, 1935, had they beenk acting legally; back pay would then be due to those of the claimants who would have been called, and nothing would be due to those whom-. the respondents now decide they would not have reinstated 4 years ago. Among other cogent objections to this procedure is the fact that this determination would be substantially impossible, and the question of back pay would entail endless negotiation and specula- tion, with attendant delays when a solution of the problems has al- ready been too long delayed. Further, in the light of the whole record, we do not believe that it would effectuate the purposes of the Act thus to permit the determination of the back pay due to rest al- most wholly. within the discretion of the respondent, with no ob- jective standards available by which a third party could test their determination. We reject this method, and turn to the only solution that seems fair, workable, and calculated to serve the purposes for which it is intended.184 A lump sum shall be computed, consisting of all, wages, salaries, and other earnings paid out by the respondents to all persons hired or reinstated from and after July 5, 1935, up to the date on which the respondents comply with our order reinstating or placing on a preferential list the claimants discriminated against.186 The lump sum shall consist of all such monies so paid to such persons during the period set forth in the preceding sentence. For the reasons in- dicated above, we shall not credit the entire lump sum to the claim- ants discriminated against, since we cannot assume that they and only they would have been given these jobs had the respondents. 183Our findings above do indicate that some of the claimants whose cases we are dis=- missing would not have been reinstated-such as those who had filed disability claims against the respondents . But this is not ascertainable as to others-such as those who did not testify at the hearing. 3811n the cases of Sheppard and Rayon, whom we have found to have been discrimi- natorily discharged , the ordinary method of computing back pay shall be applied. is-- If at any given time during this period the number of such new or reinstated em- ployees then working exceeds the number of claimants discriminated against, only the earnings of a number of such employees equal to the number of claimants discriminated against shall he counted in computing the lump sum. In such a case the respondents shall not select any particular new or reinstated employees for exclusion from the com- putation, but shall take the average earnings of all new or reinstated employees then working and multiply by the number of claimants discriminated against, to arrive at the total to be credited to the lump sum. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acted lawfully. But we can and do assume for this purpose that a proportionate amount of such claimants would have been given the jobs. In establishing the governing proportion, we shall divide the number of claimants discriminated against by that same number plus the number of other employees on the respondents' pay rolls .of May 8, 1935, who applied for work with the respondents, whether :successfully or not, after July 5, 1935.111 Let us assume for purposes .of illustration that the lump sum amounts to $360,000, that there are :200 claimants discriminated against, and that there are 100 other employees on the May 8, 1935, pay roll who applied after July 5, 1935. Thus, we assume that two-thirds of the number of jobs .would have gone to claimants discriminated against, had the respondents acted lawfully, as jobs were filled. This, we think, is as close as it is possible to come to reconstructing the probable situation, absent the respondents' discrimination. Still using the illustrative figures, two-thirds of the lump sum, or $240,000, would be the basic sum to be divided among the claimants discriminated against. This sum is then to be apportioned among the claimants discriminated against. The portion to be credited to each such claimant will not be the same, since some of the claimants had higher paying jobs with the respond- ents, and they should receive a proportionately larger share of the lump sum. This proportion is to be computed by dividing the aver- age annual earnings of the particular claimant, when employed by the respondents, by the average annual earnings of all such claimants when so employed .1117 Thus, assuming that the average annual earn- ings of all the 200 such claimants (still using illustrative figures only) were $100,000, a particular claimant with average annual earn- ings of $500 would be credited with one two-hundredth of the net lump sum, or $1,200; one with a $250 average would be credited with but $600; one with a $1,000 average would be credited with $2,400. After such individual apportionment is made, individual deduc- tions are to be made from the sum credited to each claimant. A IN we are not including in this computation former employees who did not apply, since as to them, unlike the claimants discriminated against, there is no showing that they refrained from applying because of the blue -card requirement , rather than because of dis- interest in reinstatement or other normal reasons. Nor are we including new applicants, since we make the normal assumption , based here on the respondents ' actual practice, that the respondents would generally have taken back those employed by them prior to the strike, in preference to new applicants , had they acted without regard to Illegal ,considerations. 180 In some cases, such persons had not on May 8, 1935 , been employed for a full year. In such a case, the shorter period shall be used as a representative basis for computation of annual earnings . Thus, if an employee had worked for the respondents for only E months, earning $200 , his average annual earnings shall be regarded as $400. In many cases, the employees ' annual earnings are listed since 1932 . In such instances the annual earnings shall be averaged on the basis of those years . In no case will earnings before 1932 ,be considered . In all cases where the employees have not worked the entire period since 1932 but have worked for more than a full year , average annual earnings shall be coln- :puted on the basis of the full year or years before May 8, 1935. EAGLE-PICHER MINING & SMELTING COMPANY 837 deduction applicable to each is the amount of net earnings 188 of the particular individual during the period from July 5, 1935, to the date of his reinstatement or placement on a preferential list, except for earnings during periods excluded in computing his back pay, as discussed below. These deductions of net earnings are to be made individually from the sums credited to the particular claimant; the net earnings of all the claimants are not to be totalled and deducted in lump from the net lump sum referred to above. The amounts credited to certain claimants are to be subject to further deductions. Since the Trial Examiner failed to find a violation! of Section 8 (3) as to those persons who were alleged to have engaged in violence, those persons who were N. R. A. men, those who had worked at the Tulsa-Quapaw mine or other operations which had been cur- tailed, and other persons, we shall, in the exercise of our discretion, not require the respondents to reimburse any such employees for the period from the date of the Intermediate Report, August 31, 1938, to the date of our order. Also, since the Trial Examiner recom- mended that back pay for those persons who had been employed at the Bendelari mine cease on June 30, 1936, we shall exclude the period from August 31, 1938, to the date of our order, from computation. We shall also order a proportionate' reduction for the period during which we have found certain persons to have been incapable of work because of ill health or to ..have been otherwise disqualified for a portion of the time. The periods which are to be excluded are listed in parentheses after the name of each claimant concerned in Appendix A and B. In the case of claimants for whom such periods are to be excluded, the computation shall be by proportionate reduc- tion of the individual sum otherwise due. The proportion so re- duced shall be determined by dividing the total number of days be- tween the date of discrimination and the date of reinstatement or placement on a preferential list less the total number of days ex- cluded in that period by the total number of days between the date of discrimination and the date of reinstatement or placement on a preferential list. This reduction is to be made before the reduction of net earnings. Thus, let us assume that a particular claimant's share of the lump sum, before his net earnings are subtracted, is $1,200. Let us further assume that 1,500 days have elapsed between the date of discrimination and the date of reinstatement or place- ment on a preferential list; and that we have excluded the claimant from back pay. for a period of 500 days. The sum due him, before subtraction of net earnings, would be two-thirds of $1,200 or $800. The computation described above shall be made separately for each respondent. The ultimate individual sum arrived at shall be 11^See footnote 178 above. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paid, in the case of the respondent Lead Company, to persons listed in Appendix A, and in the case of the respondent Mining Company; to persons listed in Appendix B. In the case of W. E. Honeywell, the sum which would have been due him shall be paid over to Hazel Honeywell, his duly appointed administratrix. The question is raised by the record whether the respondents should be permitted to deduct from the back pay due under our order monies received by an employee for work performed upon Federal, State, county, municipal, or other relief projects during the period for which the respondents are under obligation to pay such employee back wages. In so far as the employee receives remuneration for such work during periods when he would otherwise have been work- ing for the respondent, it would not seem necessary, in restoring him to the status quo, to require the respondents to reimburse him in such amounts. -Nevertheless, to hold that the losses accruing from the respondents' unfair labor practices must be borne by the government or governments financing the work-relief project would not effectuate the policies of the Act. We shall, therefore, order the respondents to deduct such sums from the amounts otherwise due the employees and to pay such deductions over to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or govern- ments, which supplied the funds for the work-relief project.189 We have discussed above the remedy to be applied as to individuals who obtained regular and substantially equivalent employment after the respondents discriminated against them, but who may, neverthe- less, desire reemployment. The issue of regular and substantially equivalent employment is raised by the respondents as to a large number of the individual complainants. Before turning to the dis- cussion of, each individual concerning whom the respondents have made this claim,. we shall first briefly state the various factors enter- ing into the determination of "regular and substantially equivalent, employment." We regard various factors of importance on this issue. These factors include, of course, a comparison of the wages which the em- ployee would have earned had he remained with the respondents and the wages which he actually earned in working for others. Com- parative working conditions are also of importance. We shall take into consideration the type of employer with whom the particular person has obtained employment, particularly in view of the fact that the respondents are large employers for whom the danger of permanent shut-down, insolvency, and other risks are less great than in the case of operators who own only one small mine. Geo- 189 Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219, 395; Matter of The Dow Chemical Company and United Mine Workers of America, District No. 50, 13 N. L. R. B. 993. EAGLE-PICHER MINING & SMELTING COMPANY 839 graphical considerations shall also be given weight : we recognize that it is a severe hardship for the employees to have had to leave the Tri-State area, where they had lived and where their families were settled. The mere fact that employment obtained elsewhere was stated by the subsequent employer to be of indefinite duration will not establish that such employment was equivalent if it was in fact for only a comparatively brief period.190 With these factors in mind, we turn to a consideration of each employee concerning whom the respondents make the claim of regular and substantially equivalent employment. We shall not discuss individuals in this category whose cases are to be dismissed on other grounds. William Harry Allen is claimed to have obtained regular and sub- stantially equivalent employment with the B. H. & W. Mining Com- pany on July 16, 1937. His average annual earnings with the re- spondent Mining Company prior to the strike were $647.84. He denied that he had ever worked for the B. H. & W. Mining Company, and checks from that Company endorsed by one "H. Allen" do not bear a signature similar to the claimant's. Further, one of the checks from that company to H. Allen was dated August 6, 1937, a time when the claimant was ill and unable to work, having just had all operation at a hospital. We find that William Harry Allen has not obtained regular and substantially equivalent employment. William Atkinson is claimed to have obtained regular and substan- tially equivalent employment with the Canadian Mining & Develop- ment Company on January 9, 1936. Atkinson earned •$431.70 while working for the respondent Mining Company between September 1934 and May 8, 1935. He testified that his work for the Canadian Company was at first irregular and lasted for only 3 weeks. On February 3, 1936, he returned to work for the Canadian Company and remained for 2 months. During this period, however, he ob- tained only 3 weeks' actual work, and the job ended when the entire project shut down because "the dirt ran out." We find that William Atkinson has not obtained regular and substantially equivalent' em- ployment. Ernest Bankhead is claimed to have obtained regular and substan- tially equivalent employment on October 29, 1936. His average an- nual earnings with the respondent Mining Company up to the time of the strike amounted to $754.05. With the Berg Company, Bank- head worked from October 29, 1936, until June 24, 1937. On October 18, 1937, he returned to the Berg Company and worked until Febru- 19, The respondents sent questionnaires to employers who had subsequently employed the claimants herein. Among the questions asked was : "was his employment considered by you as temporary or until a particular job was completed , or was he employed as long as he made good?" The answers to these questions were submitted in evidence by the respondents. 24T383-40-vol. 16--51 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ary 10, 1938, when he quit because he had saved enough to be able to return to the Tri-State area to see his mother, with whom he lives. The Berg Company is located in California, where, according to Bankhead, his living expenses were much higher. Bankhead earned $4.40 a day acting as foreman for the Berg Company, and earned a total of $1,271 with that company. Because of geographical con- siderations and his absence from his family, we find that Ernest Bankhead has not obtained regular and substantially equivalent employment. Theodore R. Bennett testified that he obtained "a better job" on April 15, 1937, and does not desire reinstatement. We find that on April 15, 1937, Theodore R. Bennett received regular and substan- tially equivalent employment. A. G. Black is claimed to have obtained regular and substantially equivalent employment with the Montana Gold Company on July 6, 1936, and with one Moore on September 19, 1937. Black's average annual earnings with the respondent Mining Company prior to the strike were $913.45. He worked for the Montana Gold Company from July 6 to September 18, 1936, working 7 days a week, from 8 to 12 hours a day. He testified and we find that he received $150 a month with that Company, or a total of $440, and that the job ended when the business reorganized and failed to reopen. On September 19, 1937, he began to work for Moore, a mine operator. He received $4.50 a day and continued to work for Moore until the time of the hearing, March 19, 1938, having earned a total of $745.44. Black testified that this work was for a "small company in a bunchy ground neighborhood." We find that A. G. Black has not obtained regular and substantially equivalent employment. Henry Bloom is claimed to have. obtained regular and substantially equivalent employment in May 1937 with the Pacific Coast Borax Company. This Company is at Hinckly, California, where Bloom worked from May 13 until November 5 and from December 3 to 24, 1937. He earned a total of $942.50. This job ended "due to reduc- tion of forces account no orders." Because of geographical considera- tions and because of the termination of the job, we find that Henry Bloom has not obtained regular and substantially equivalent em- ployment. Fred Bogle, Jr., is claimed to have obtained regular and substan- tially equivalent employment with the American Smelting & Refining Company at Selby, California, on December 12, 1935, and also with the Pittsburg Sand Company in California, in September 1936. Bogle's employment with the American Smelting & Refining Com- pany lasted from December 12, 1935, until July 22, 1936, and he earned a total of $620.60, as compared to his average annual earnings EAGLE-PICHER :IIINI_NG & SMELTING COMPANY 841 with the respondent Mining Company of $439.29. He testified that the work at the American Smelting & Refining Company was un- pleasant, since it was very dusty and in a closed room, with the result that he suffered from frequent colds. He left this job because of these conditions and because he wished to visit his family in the Tri- State area. In September 1936, Bogle returned to California and worked for the Pittsburg Sand Company until December 22, 1937. He=averaged $25 a week and totaled $1,500. Bogle testified that this was a "steady and regular job" and that the working conditions were good. On December 22, 1937, he was temporarily laid off because of curtailment of operations, but he expected to return to work. He is now permanently domiciled in California. We find that in Septem- ber 1936, Fred Bogle, Jr., obtained regular and substantially equiv- alent employment with the Pittsburg Sand Company, but that he did not obtain such employment before that date. Mark Bond is claimed to have obtained regular and substantially equivalent employment on September 2, 1937, with the Big Blue Mine, Kernville, California. Bond's average annual earnings with the re- spondent Mining Company prior to the strike had been $350.17. Bond worked for the Big Blue Mine only from September 2 to 11, 1937, and earned $50, having worked 7 days a week, as compared to the 5-day week at the respondent Mining Company before the strike and the 6-day week thereafter. Bond left the Big Blue Mine because of the bad air in the mine. In view of the actual length of his em- ployment, of the conditions of employment, and of geographical con- siderations, we hold that Mark Bond has not obtained regular and substantially equivalent employment. Roy Boyd is claimed to have obtained regular and substantially equivalent employment on September 18, 1935, with the American Smelting & Refining Company at Selby, California. Boyd's average annual earnings with the respondent Mining Company prior to the strike were $640.08. He worked for the American Smelting & Refin- ing Company from September 18, 1935, until July 22, 1936, and dur- ing this period earned a total of $786.25. He left the employ of the American Smelting & Refining Company because his mother became ill and he had to return to the Tri-State area. He also testified, and we find, that he would have been laid off shortly. Boyd next obtained employment with the Hazel Atlas Glass Company in Pittsburg, Cali- fornia, from April 6 to December 23,1937. He earned $5.28 a day and totalled $900. He testified that he left this job because business be- came slack and he was laid off. However, in answer to a prior ques- tionnaire he had stated that the reason he left was because he had "heard the strike in the Tri-State District was about to be settled, so I went to Kansas." Because of geographical considerations, we find 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Roy Boyd has not obtained regular and substantially equivalent employment. Ulyes Bradbury is claimed to have obtained regular and substan- tially equivalent employment with the Federal Mining & Smelting" Company on September 27, 1937. This Company is located in Bax- ter Springs, Kansas. Bradbury's average annual earnings with the respondent Mining Company prior to the strike were $452.59. He worked for the Federal Mining & Smelting Company from Septerj her 27 to December 15, 1937, when his employment ceased because the mine shut down. At the Federal Mining & Smelting Company, Bradbury earned $263. In view of the actual length of his employ- ment with the Federal Mining & Smelting Company, we find that Ulyes Bradbury did not obtain regular and substantially equivalent employment. Nick Bratz is claimed to have "probably" obtained regular and substantially equivalent employment with the Bennett Coal Com- pany sometime in 1936, from which Company he earned $80 and board. His employment with that Company was for two periods of 6 and 9 weeks, respectively. Bratz's average annual earnings with the respondent Mining Company prior to the strike had been $350.05. In March 1937, Bratz began to work for the Darwin Lead Company, at Darwin, California. He worked from September 1 to 14, 1937, and earned a total of $55. This job ended when the mine shut down. In view of geographical considerations and the actual length of his subsequent employment, we find that Nick Bratz has not obtained regular and substantially equivalent employment. Paul M. Brooks is claimed to have obtained regular and substan- tially equivalent employment by virtue of the fact that he has become a farmer. From January 1 until May 8, 1935, Brooks earned $183 working for the respondent Mining Company. He was engaged in farming after May 8, and until the hearing. The total expenses of running his farm were $1,235 and the total earnings were $1,516. His net earnings from the farm over a period of 3 years were $281. We find that Paul M. Brooks has not obtained regular and substan- tially equivalent employment. James 0. Bryant is claimed to have obtained regular and substan- tially equivalent employment with the Albertoli Mining Company in December 1936 and the W. H. Mining Company in July 1937. His earnings with the respondent Mining Company were $312.25 from October 22, 1934, until May 8, 1935. Bryant's employment with the A lbertoli Mining Company lasted for only 4 weeks and ended when the ore "petered out." This job was in California. He worked for the W. 11. Mining Company in the Tri-State area from July 8 to. September 2, 1937, where he earned $105.97. We find that James O. EAGLE-PICHER MINING & SMELTING COMPANY 843 Bryant has not obtained regular and substantially equivalent employment. Williams Bryant is claimed to have obtained regular and substan- tially equivalent employment at the New Blue Mound Mine on November 1, 1936, and at the B. H. & W. Mining Company on March 1, 1937. Bryant had earned $558.05 working for the respondent Mining Company from June 7, 1934, to May 8, 1935. He was em- ployed at the New Blue Mound Mine in the Tri-State area from December 1 to 31, 1936,111 where he earned a total of $87.50. The New Blue Mound Mine operated only one mine, and Blyant's job ended when that mine shut down. Bryant worked for the B. H. & W. Mining Company in the Tri-State area from March 11 to November 5, 1937, earning a total of $360. This job also ended when the mine shut down. We find that William Bryant has not obtained regular and substantially equivalent employment. Archie Lee Bunch. is claimed to have obtained regular and sub- stantially equivalent employment with the Mid-Continent Petroleum Company. Prior to the strike, Bunch's average annual earnings with the respondent Mining Company were $435. He worked for the Mid-Continent Petroleum Company at Tulsa, Oklahoma, from August 5, 1936, until December 22, 1937. He worked for that Company as a common laborer and during the entire period earned $1,100. How- ever, his work was not regular, since in many of the months he worked only part time and sometimes as little as 10 days a month. This job ended when the Company laid off its crew because of slack work. We find that Archie Lee Bunch has not obtained regular and substantially equivalent employment. R. F. Burgett is claimed to have obtained regular and substantially equivalent employment at the Iron Mountain Mine in August 1937, at the B. H. & W. Mining Company in September 1937, and at the Federal Mining & Smelting Company in November 1937. His aver- age annual earnings with the respondent Mining Company prior to the strike were $384. Burgett began to work for the Iron Mountain Mine on August 16 and continued to work until September 1, 1937. His total earnings were $61.25. He worked for the B. H. & W. Min- ing Company from September 10 until October 29, 1937, earning a total of $126.97. It is not clear whether he left this job voluntarily or whether the mine shut down. He worked for the Federal Mining & Smelting Company from November 25, 1937, to February 4, 1938, 1911n answer to the questionnaire sent by the respondents , the New Blue Mound Mine answered that Bryant 's employment did not cease until May 20, 1937, and that he earned $481.98. The B. H. & W. Mining Company wrote that it had employed William Bryant from March 11 until November 5, 1937. Bryant himself testified that he worked for the New Blue Mound Mine only during the month of December 1936. We find that the New Blue Mound Mine's answer was incorrect. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earning a total of $260.70. He was discharged for cause. His work at the latter two mines was similar to his work with the respondent Mining Company before the strike and was at a wage similar to that paid during the same period by the respondent Mining Company. His work for the respondent had not been very steady. All of his subsequent employment was in the. Tri-State area. We find that R. F. Burgett obtained regular and substantially equivalent employ- ment on September 10, 1937, but that he did not obtain such employ- ment before that date. Grant Cavin is claimed to have obtained regular and substantially equivalent employment with the Darwin Lead Company on April 19, 1937. Prior to the strike his average annual earnings with the respondent Mining Company amounted to $680. He began to work for the Darwin Lead Company in Darwin, California, on April 19 and continued in that Company's employment until April 28, 1937. He earned a total of $37, and his employment ceased when the opera- tions shut down. In view of the actual length of his employment with the Darwin Lead Company and its remoteness from the Tri-State area, we find that Grant Cavin has not obtained regular and sub- stantially equivalent employment. D. G. Creason is claimed to have obtained regular and substantially equivalent employment with the Dines Mining Company in the Tri- State area on March 18, 1937. His average annual earnings with the respondent Mining Company prior to the strike had been $621. He worked for the Dines Mining Company from March 18 to 25, 1937, and earned a total of $15.39. While working for the respondent Mining Company prior to the strike, Creason was paid by the can, and he was, paid on a similar basis and at a similar rate with the Dines Mining Company. However, because the dirt at the latter mine was not as good as the dirt at the respondent Mining Company's mines, Creason averaged less at the Dines Mining Company. We find that D. G. Creason has not obtained regular and substantially equivalent employment. James A. Cwrry is claimed to have obtained regular and substan- tially equivalent employment on August 25, 1937.. His average annual earnings prior to the strike with the respondent Lead Company were $616.81. On August 25, 1937, Curry began to work as a night watch- man for the Central Foundry Company and was still working for that Company at the time of the hearing. He received $2.40 a day and .was required to work 7 days a week. Prior to the strike, while working for the respondent Lead Company, Curry earned $3.20 a day for a 5-day week. We find, in view of the different nature of employment and the different -working conditions, James A. Curry has not obtained regular and substantially equivalent employment. EAGLE-PICHER MINING & SMELTING COMPANY 845 Calvin Davis is claimed to have obtained regular and substantially equivalent employment on August 14, 1935, on January 1 and June 2, 1937. Prior to the strike his average annual earnings with the respondent Mining Company were $430. He worked from August 14, 1935, until June 26, 1936, as a section hand on the "Frisco" Rail- road. According to the questionnaire filled out by the "Frisco" Railroad, Davis "worked extra and regular, according to seniority," and was laid off because of a reduction in force. His hourly wages approximately 30 cents and his total earnings were $477. While working for the respondent Mining Company Davis earned $2.80 a shift prior to the strike, and the evidence shows that after resumption of operations the wages in general were raised. Davis worked for J. A. Crain & Company from January 1 until March 15, 1937, as a truck driver and earned approximately $300. He left J. A. Crain & Company when the work ceased. Davis next worked for the Sun- flower Mining Company from June 2 until November 1937, where his total earnings were $172.80. This mine was an old one which had been previously worked and which did not operate after Novem- ber 1937. While working for the Sunflower Mining Company, Davis was engaged "mostly in gouging"-that is, reworking old dirt 102 We find that Calvin Davis has not obtained regular and substantially equivalent employment. Clyde O. Dimitt worked on a farm subsequent to May 8, 1935. In the form of produce he has received $625 from the farm, but has invested $700 therein. We find that Clyde O. Dimitt has not obtained regular and substantially equivalent employment. Jake C. Emerson is claimed to have obtained regular and sub- stantially equivalent employment on July 14, on October 1, 1937, and on January 24, 1938. Emerson's average annual earnings with the respondent Mining Company prior to the strike, over a period of 3 years, amounted to $86.89. On July 14, 1937, he began to work for the Y & W Mining Company in the Tri-State area and worked there until September 1937, earning a total of $182. In view of Emerson's irregular employment with the respondent Mining Company prior to the strike, we find that he obtained regular'93 and substantially equivalent employment on July 14, 1937, but that he did not obtain such employment before that date. 192 The respondents placed in evidence the Sunflower Mining Company's answer to its questionnaire. This answer stated that Davis was still employed by the Sunflower Mining Company on March 10, 1938, and that he had earned a total of $588.69. In the absence of further evidence on this issue, and in the absence of any cross-examination on the matter or of any reason to disbelieve Davis, we find that Davis' employment with the Sunflower Mining Company was as he testified. 193 We interpret the language of Section 2 (3) of the Act, referring to "regular and substantially equivalent employment," as meaning employment substantially equivalent in regard to regularity as well as in regard to other factors. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M. C. Forrest is claimed to have obtained regular and substantially equivalent employment on January 4, in December 1936, and on July 7, 1937. Prior to the strike his average annual earnings with the respondent Mining Company were $592.50. He worked for the Black Mining Company in the Tri-State area from January 4 until Febru- ary 28, 1936, earning $183.70. This job ended when he was laid off. He worked for the Loyce June Mining Company in the Tri-State area from December 1936 until March 17, 1937, where he admitted his job was "equivalent" to the job he had with the respondent Mining Company, and that he earned $30 a week or $8 more a week than he had earned with the respondent Mining Company. He testified, however, and in the absence of any conflicting evidence we find, that he lost his job with Loyce June Mining Company because of his failure to obtain a blue card. In view of the respondents' connec- tions with the formation of the Tri-State Union and their require- ment of a blue card, as described above, they cannot escape their obligations to reinstate employees who were victims elsewhere of the discriminatory requirement in the establishment of which the respondents played a major part. Forrest worked from September 7 to 21, 1937, for the Johnny Hicks Mining Company. His total earnings with that Company were $46.28. We find that M. C. Forrest has not obtained regular and substantially equivalent employment. Fred Foster is claimed to have obtained regular and substantially equivalent employment in September 1936. He worked for the respondent Mining Company from February 18 to May 8, 1935, and earned $170.15. In September 1936 he began to work for the Foster Lumber Company in Indiana, and worked approximately half time until January 1937, earning during this period a total of $168. Be- ginning in January 1937 he worked every day for the Lumber Com- pany that the Lumber Company was operating, and earned a total of $984 until December 15, 1937. His job with that Company ter- minated when he broke his arm, and he testified that he expected to go back to the Lumber Company as soon as his arm recovered. We find that in January 1937 Fred Foster obtained regular and sub- stantially equivalent employment, but that he did not obtain such employment before that date. Henry L. Freeman is claimed to have obtained regular and sub- stantially equivalent employment on January 2, 1936. While working for the respondent Mining Company prior to the strike his average annual earnings were $642. He worked for the Dines Mining Com- pany in the Tri-State area from January 1 to March 15, 1936, where he earned $2.50 a day, in contrast to his earnings of $30 a week with the respondent Mining Company. At the Dines Mining Company he worked during the night, whereas with the respondent Mining Com- EAGLE-PICHER MINING & SMELTING COMPANY .847 pany he had worked during the day. Freeman left the Dines Mining Company "because there were too many boulders and too much powder shot in the air." In view of the different working conditions, as well as the difference in wages, we find that Henry L. Freeman has not obtained regular and substantially equivalent employment. John E. Freeman is claimed to have obtained substantially equiva- lent employment on September 18, 1937. Between January 1 and May 8, 1935, Freeman earned $182 working for the respondent Min- ing Company. He testified that he received no subsequent employ- ment at any mines, and we are unable to find any evidence that he worked at any time for the Indian Mining & Royalty Company, with which respondents claimed he obtained equivalent employment. We find that John E. Freeman has not obtained regular or substantially equivalent employment. W. S. Fulkerson is claimed to have obtained substantially equiva- lent employment on November 6, 1936, on January 30, on April 24, and on December 10, 1937. Fulkerson earned $222 from January 1 to May 8, 1935, while working for the respondent Mining Company. He averaged $4 a day. From November 6, 1936, until April 1937 he was employed by the Davis Big Chief Mine in the Tri-State area, averaging $3.19 a shift and totalling approximately $400 for the period. He left this job because he did not like the work there. From April 24 until June 24, and from December 10 until 17, 1937, Fulkerson worked for the Oko Mining Company as a shoveler, earn- ing 12 cents per can, $3 a day, and a total of $189.34. This job ended when the mine shut down. We find that W. S. Fulkerson has not obtained regular or substantially equivalent employment. Kenneth Gary is claimed to have obtained regular and substan- tially equivalent employment in August 1936 and April 1937. From January 1 to May 8, 1935, he earned $228 working for the respondent Mining Company, earning $2.50 a day, 5 days a week, 8 hours a day. From August 25 to October 1936 he managed an ice cream store, earning $77.50. This job ended when the store closed. From April 20 to October 20, 1937, he worked for the Pacific Bottling Company in Oregon, earning $2.50 a day and totalling $375. While at the Bottling Company he was required to work 10 to 12 hours a day in contrast to the 8 hours a day he worked for the respondent Mining Company. We find that Kenneth Gary has not obtained regular or substantially equivalent employment. Luke A. GrifJitt began to work for the Federal Mining & Smelting Company in the Tri-State area on October 20; 1937, and was still employed by that Company at the time of the hearing. Griffitt does not desire reinstatement. He testified, and we find, that the job was 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regular and equivalent to the work he had been doing for the respond- ent Mining Company. He did not obtain regular and substan- tially equivalent employment before that time. Mack Hanks is claimed to have obtained regular and substantially equivalent employment on March 13, 1936, on June 20 and October 29, 1937. Prior to the strike he was employed by the respondent Mining Company and earned $4.50 a day, 5 days a week.' His average annual earnings since 1932 were $699. Between March 1936 and June 1937, Hanks was employed by the Byrdhart Mining Company in the Tri- State area, working for about 300 days during this period at $3 a day. This job ended when the mine was subleased. Between June 20 and September 11, 1937, he was employed at the Cagle Mining Company, earning a total of $202. This job ended when "the mine went broke." Between October 29, 1937, and February 21, 1938, Hanks worked oc- casionally for the Little Six Mining Company, earning $3.50 a day and' a total of $65.28. Hanks, who had worked with' the respondent Mining Company for 8 years prior to the strike, testified that he ob- tained no subsequent employment from which he earned as much as he had been receiving from the respondent Mining Company. We find that Mack Hanks has not obtained regular or substantially equivalent employment. Cecil Glenn Harreld is claimed to have obtained regular and sub- stantially equivalent employment on August 10, 1935, and in October 1937. Between January 1 and May 8, .1935, Harreld earned $309 from the respondent Mining Company, working 8 hours a day, 5 days a week, and getting $3.55 a day .and $17.75 a week. From August 10, 1935, until January 10, 1936, he worked for the Continental Reclamation Company in Texas, earning $4.50 a day and a total of $390. Because of inclement weather, Harreld averaged only 17 days' work a month on this job and it ended when the reclamation was completed. There- after, Harreld was transferred to working as a watchman for the same Company, where he remained for 7 months, earning a total of $416, or a little more than $2 a day. This job ended when the Company became insolvent. In October 1937, Harreld worked for the Yellow Aster Mining Company, being employed 2 months and earning a total of $125. This job ended when the Company went out of business. We find that Cecil Glenn Harreld has not obtained regular and substan- tially equivalent employment. Alfred P. Hatfield is claimed to have obtained regular and substan- tially equivalent employment on September 5, 1937. His average annual earnings with the respondent Mining Company prior to the strike were $610.80. At the time of the strike he was earning $2.80 a day or $14 a week for an 8-hour day, 5 days a week. On September 5, 1937, he began to work for the Kohl & Barr Mining Company at Waco, EAGLE-PICHER MINING & SMELTING COMPANY 849 Missouri, earning $3.50 a day and working for 8 hours a day. He termed this as "just regular mining work." At the time of the hearing he was still employed at the Kohl & Barr Mining Company, having earned a total of $424.50 since September 5, 1937. We find that on September 5, 1937, Alfred P. Hatfield obtained regular and substan- tially equivalent employment. B. H. Headley is claimed to have obtained regular and substanti- ally equivalent employment on June 1, 1936. His average annual earnings with the respondent Mining Company prior to the strike were $257.40. On June 1, 1936, Headley obtained employment at the Kansas Milling Company in Wichita, Kansas, earning $3.20 a day and working 6 days a week. On March 10, 1938, he was still employed by that Company, having earned a total of $2,005.55. We find that on June 1, 1936, G. M. Headley obtained regular and sub- stantially equivalent employment, but that lie did not obtain such employment before that date. Ralph, Henderson is claimed to have obtained regular and sub- stantially equivalent employment on January 15 and July 27, 1936. His average annual earnings while working for the respondent Min- ing Company were $668.78, and prior to the strike he was working 8 hours a day and averaging $21.40 a week. Beginning January 15, 1936, he obtained employment with the Dines Mining Company and worked for a total of 70 shifts, earning $165.73. He was paid by the can at a lower rate than the respondent' Mining Company,had paid him. From July 27, 1936, until January 1, 1938, he worked for the Davis Big Chief Mine, being paid 11 to 15 cents a can. These cans, however, were much larger than the cans used by the respondent Mining Company. His total earnings at this job were $1,426.61, an average somewhat higher than his average at the re- spendent Mining Company. He testified that he quit the Davis Big Chief Mine when the mine shut down. In its answer to the ques- tionnaire, however, that Company stated that Henderson quit volun- tarily because of illness. In view of the fact that Henderson had worked for the respondent Mining Company steadily from April 29, 1929, to May 8, 1935, and worked at the Davis Big Chief Mine for only 347 shifts, and in view of the fact that the working conditions were made somewhat more difficult by the size of the cans, we find that Ralph Henderson has not obtained regular and substantially equivalent employment. James R. Hensley is claimed to have obtained regular and sub- stantially equivalent employment on February 12, and on April 5, 1937. His average annual earnings from the respondent Mining Company prior to the strike were $575, having averaged $3.55 a shift. From February 12 until March 6, 1937, he worked with the 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Canadian Mining & Development Company in the Tri-State area, earning $4 a day and leaving when the mine shut down. On April 3, 1937,, Hensley began to work for the Federal Mining & Smelting Company in the Tri-State area, and was still working for that Com- pany on January 20, 1938, the date on which he testified. He began work at $4.65 a shift, but these wages were reduced to $3.40 a shift by December 1937. His total earnings with that Company were $1,400. We find that on April 3, 1937, James R. Hensley obtained regular and substantially equivalent employment, but that he did not obtain such employment before that date. Vivian Hiatt is claimed to have obtained regular and substantially equivalent employment sometime in 1936. His average annual earn- ings with the respondent Mining Company were $639. At the time of the strike he averaged $2.80 a day or $14 a week. From April 10 to August 10, 1936, Hiatt worked for a construction company in New Mexico, earning $3.50 a day and a total of $460. This job was one lasting only for the duration of the particular construction work. Between April 29 and September 1, 1937, Hiatt obtained a similar construction job and earned $720. Inasmuch as such employment was geographically remote from the Tri-State area, and inasmuch as these jobs were temporary by their very nature, we find that Vivian Hiatt has not obtained regular and substantially equivalent employment. H. N. Hilburn is claimed to have obtained regular and substan- tially equivalent employment on August 14, 1935, and on May 19, 1936. Hilburn's average annual earnings. from the respondent Mining Company were $1,153. At. the time of the strike he was earning $42 a week for a 5-day week. . He worked from August 14 until 21, 1935, at the Morning Mine in Mullen, Idaho, where he earned $42.50. From May 19 until November 21, 1936, he worked at the Hecla Mine at Burke, Idaho, where he earned a total of ap- proximately $700. Hilburn testified that he left the latter job because he was "blacklisted"; officials of the Hecla Mine, answering the respondents' questionnaire, stated that he was "laid off to make room for man with family." We find that H. N. Hilburn has not obtained regular and substantially equivalent employment. Paul Hollingsworth is claimed to have obtained regular and sub- stantially equivalent employment on September 20, 1937. His aver- age annual earnings while working for the respondent Mining Com- pany were $265, and at the time of the strike he was earning $2:50 a day. While working for the respondent Mining Company he worked at the Galena smelter. From September 20 until November 14, 1937, Hollingsworth worked as a shoveler at the Waco Mine in Missouri, where he earned $4 a day. He quit this job because he EAGLE-PICHER MINING & SMELTING COMPANY 851 did not like working in a mine and "got afraid of the ground." Although this job netted Hollingsworth a higher salary than that which he earned with the respondent' Mining Company, in view of the fact that the respondent Mining Company's job did not involve working in a mine, we find that Paul Hollingsworth did not obtain regular and substantially equivalent employment. Cleve Horner is claimed to have obtained regular and substan- tially equivalent employment on June 20, 1936. His average annual earnings with the respondent Mining Company were $577.80, and at the time of the strike he received $3.25 a day for an 8-hour day, working 5 days a week. His average weekly salary was $16.25. On June 20, 1936, he began to work for the Ore Development Com- pany in the Tri-State area. He worked for this Company and its successors until February 10, 1938, averaging $49 a month. His total earnings from these Companies were $1,500. His average earn- ings were $3.50 a day, but he was required to work 12 hours a day, 7 days a week. This job ended when the Company went out of business. In answer to the respondents' questionnaire, the manager of the Ore Development Company stated that Horner had been "employed more or less steadily though not always at full time." We find that Cleve Horner has not obtained regular and substan- tially equivalent employment. J. D. Hughes was reinstated by the respondent Mining Company on November 14, 1935, in a job similar to that which he filled prior to the strike. We find that on November 14, 1935, J. D. Hughes obtained regular and substantially equivalent employment. Harry Franklin James is claimed to have obtained regular and substantially equivalent employment on July 16, 1937. His average annual earnings with the respondent Mining Company were $417. At the time of the strike he was working as a machineman, earn- ing $3.55 a day and $17.75 a week. On July 16, 1937, James went to Burke, Idaho, and worked for the Sullivan Mining Company until November 24, 1937. He earned about $700 with that Company and quit to return to the Tri-State area, where his wife and children lived. We find that Harry Franklin James has not obtained regu- lar and substantially equivalent employment. J. L. Jones is claimed to have obtained regular and substantially equivalent employment on September 4, 1935, on November 10, 1936, on August 2, 1937, and on March 25, 1937. His average annual earn- ings with the respondent Mining Company were $665.50. At the time of the strike he earned $4.75 a day and $24 a week for an 8-hour day, 5-day week. From September 4, 1935, until March 10, 1936, he worked for the New Mont Mining Company at Grass Valley, Califor- nia. He was paid $4.80 a day and earned a total of $1,014.73. He 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD left this job when he was notified by his family that he was wanted at his home in the Tri-State area. Thereafter, he returned to Califor- nia and worked for the Walker Mining Company, Walker, California, from November 10, 1936, to February 9, 1937, and from March 1 to 19, 1937. His total earnings for this Company were $471.43. This job ended when Jones was injured and had to go to a hospital. He was unable to obtain employment with the Company when he was dis- charged from the hospital. Jones then worked for 8 days for the Morning Mine in Mullen, Idaho, earning $34.50. He left this job because he was unable to "stand the work there because there was no ventilation." From March 25 until June 12, 1937, he worked for the Expiration Copper Company in Miami, Arizona, earning $395. He left this job because his mother was ill and he had to return to the Tri-State area to see her. In view of the difficulties engendered by geographical remoteness of the jobs which Jones obtained, we find that he did not obtain substantially equivalent employment. Burton (Ben) Kearney is claimed to have obtained regular and substantially equivalent employment on April 17, on August 1, 1936, and on June 20, 1937. Between January 1 and May 8, 1935, Kearney earned $216.60 from the respondent Mining Company. He worked 8 hours a clay, 5 days a week and averaged $2.80 a day or $14 a week. In 1936 he worked for a mining company in New Mexico and earned $70. This job ended when the "vein played out." Between August and September 1936 he worked as a driller in California, earning a total of $168. Because of illness he left this job and returned to Picher. Between June 20 and November 24, 1937, Kearney worked for a gouging mine and earned a total of $390. This job ended when the vein played out. The evidence shows that gouging mines by their very nature offer impermanent employment. We find that Bur- ton Kearney has not obtained regular and substantially equivalent employment. Earl Kohl is claimed to have obtained regular and substantially equivalent employment on July 10, 1936. His average annual earn- ings with the respondent Mining Company were $652.23. At the time of the strike he worked 8 hours a day, 6 days a week, and re- ceived $3.80 a day and $22.80 a week. Kohl found employment in California on July 10, 1936, and worked for a private individual, earning $3 a day, averaging about 3 days' work per week. This job lasted until the date of the hearing and Kohl had earned $675. In view of the disparity in wages and the type of employer, as well as geographical considerations, we find that Earl Kohl has not obtained regular and substantially equivalent employment. Darrell Largent is claimed to have obtained regular and substan- tially equivalent employment in August 1937. His average annual EAGLE-PICHER MINING & SMELTING COMPANY 853 earnings with the respondent Mining Company were $760. At the time of the strike he was getting $3.80 a day. On August 1, 1937, he obtained a job at the Port of Entry in Kansas, in charge of trucks entering that State. His monthly salary was $125 at this job, and he was still working there at the time of the hearing. He does not desire reinstatement. We find that Darrell Largent obtained regular and substantially equivalent employment on August 1, 1937, but that he did not obtain such employment before that date. John McCormick is claimed to have obtained regular and substan- tially equivalent employment in December 1936. His average annual earnings with the respondent Mining Company were $531.18. In December 1936, he entered business for himself at Ardmore, Okla- homa, engaging in auto-salvage work, from which he earned a net profit of approximately $10 a week and a total of $560. His weekly wage with the respondent Mining Company at the time of the strike was $17.50, working 40 hours a week. He desires reinstatement. In view of the different nature of his work, and his lower earnings, we find that John McCormick has not obtained substantially equivalent employment. Charles McIntire is claimed to have obtained regular and substan- tially equivalent employment in August 1936. His average annual earnings with the respondent Mining Company were $626. At the time of the strike he was earning $3.05 a day for six 6-hour shifts a week. In August 1936 he obtained a job with the Roberts Market in Venice, California, where he averaged $10 or $11 a week and earned a total of approximately $1,365. In view of geographical consider- ations and the different nature of his subsequent job, we find that Charles McIntire has not obtained substantially equivalent employment. Fred McIntire is claimed to have obtained regular and substan- tially equivalent employment in September 1936. His average annual earnings with the respondent Mining Company were $1,007.60. At the time of the strike he was working as a mechanic, receiving $3.80 it day, 8 hours a day and 5 days a week. From September 1, 1936, until the time of the hearing, McIntire did landscaping work for the Harold Lloyd Estate in Beverly Hills, California, where he received $4 a day for a 6-day week. He was employed by the Harold Lloyd Estate "until completion of the job," which was to occur a few days after McIntire testified. In view of the temporary nature of the job, in view of the geographical considerations, and in view of the different type of work from that which he had been doing for the respondent Mining Company, we find that Fred McIntire has not obtained substantially equivalent employment. James McIntire is claimed to have obtained regular and substan- tially equivalent employment on January 8, 1936. His average an- 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nual earnings with the respondent Mining Company were $754, and at the time of the strike his wages varied from $2.80 to $3.55 a day for a 5-day week. Beginning January 8, 1936, he worked as a watchman in Los Angeles, California, earning $100 a month. However, he was required to work 12 hours a day and 7 days a week, and at this job he obtained no time off. He stated that he desired reinstatement. We find that James McIntire has not obtained regular and substantially equivalent employment. Milton McIntire is claimed to have obtained regular and substan- tially, equivalent employment on August 16, in October 1935, and on May 15, 1937. His average annual earnings with the respondent Mining Company were $782.73. At the time of the strike he was working as a tractor driver and his wages varied from $3.80 to $4.05 a day, working 8 hours a day and 5 days a week. From August 6 until September 30, 1935, he worked as a common laborer for the Silica Sand Company at Brentwood, California, earning a total of $147.99. This job was stated by the Silica Sand Company to have been temporarily terminated because of lack of work. From October 16 until November 20, 1935, McIntire worked as a laborer for the American Smelting & Refining Company at Selby, California, earning a total of $109.95. He was discharged from this job. From May 19, 1937, until February 28, 1938, McIntire worked for the West Construction Company at Monrovia, California, and earned a total of $1,044.80. This job was to last only until the particular construc- tion work was completed, and McIntire was hired on such under- standing. He testified, and we find, that at the time of the hearing the project would be completed within 6 weeks. We find that Milton McIntire has not obtained substantially equivalent employment. Ray McIntire is claimed to have obtained regular and substantially equivalent employment on August 20, 1935. His average annual earnings with the respondent Mining Company were $560. At the time of the strike he was earning $3.30 or $4.05 a day, averaging $21.30 a week for a 6-day week. From August 20, 1935, until a few days before the hearing, he obtained a job as a gardener on the Harold Lloyd Estate, earning $4 a day and $24 a week. This job was to last only until the particular work was done, and it had terminated shortly before McIntire testified. He stated that he de- sired reinstatement. We find that Ray McIntire has not obtained substantially equivalent employment. Kenneth McNutt is claimed to have obtained regular and sub- stantially equivalent employment in January 1937. He had worked for the respondent Mining Company for 5 weeks prior to the strike, earning $66.32, and at the time of the strike he was earning $2.75 a shift for six shifts a week. He testified, and we find, that he was EAGLE-PICHER MINING & SMELTING COMPANY 855, working by the 'day for the respondent Mining Company and that he was "doing more or less extra work." From January until No- vember 1937, McNutt worked for the Herndon Drilling Company in Kansas, earning $7 a day and a total of $650. . He testified that during this period there were some weeks when he did not work for the Herndon Drilling Company at all, since his job was casting work-that is, drilling holes through which to run pipes. Each time McNutt finished drilling one hole he would lay off until the Company had another hole to drill. In view, however, of the nature of McNutt's prior employment with the respondent Mining Company, we find that in January 1937 he obtained regular and substantially equivalent employment , but that he did not obtain such employment before that date. Ray Mayfield is claimed to have obtained regular and substantially equivalent employment on December 18, 1936, on January 14 and on September 15, 1937. In 1934, Mayfield earned $618 from the respondent Mining Company, and for 19 weeks in 1935 he earned $270. At the time of the strike he was receiving $3.25 a day for 5 days a week. From December 18, 1936, until July 14, 1937, he was employed at the Blue Mound Mining. Company in the Tri-State area, where he worked 8 hours a day and 6 days a week and earned a total of $479. At his job he was engaged sometimes as a shoveler and sometimes as a mule driver. He quit this job because of the difficulty of the work , since he was required to drive : a mule, to pull an incline hoist, and to do other jobs. From September , 15 until December 20, 1937, Mayfield was employed by the Y. W. Mining Company in the: Tri-State area, earning $3 a day and a total of $151. This job ended when the mine shut down. We find that Ray Mayfield has not obtained regular and substantially equivalent employment. George Messer is claimed to have obtained regular and substan- tially equivalent employment on February 4, on March 4, on April 10, and on October 4 , 1937. His average annual earnings with the respondent Mining Company were $876. At the time of the strike he was earning $4.05 a day working 5 days a week. From February 4 to 27, 1937, he worked for the Canadian Mining & Development Company in the Tri-State area, earning $3.30 a day and a total of $74.38. This Company operated only one mine and the job ended when the mine shut down: From March 4 to April 2, 1937, he worked for an individual and earned a total of $94. He quit this job when he had a chance to obtain better employment . From April 10 until September 5, 1937 , Messer worked as a mill foreman for the Lead & Zinc Producers Company in the Tri-State area, earning $5 a day and a total of $550. This job ended when the Company 247383-40-vol . 1G--55 856. DECISIONS OF NATIONAL LABOR RELATIONS BOARD became insolvent. On October 4,. 1937, Messer. obtained a job at the Famous Mining. Company in the Tri-State area, earning $30 a week. He was still employed by the Famous Mining Company at the time of the hearing, having earned a total of $434.81. We find that on October 4, 1937, George Messer obtained regular and sub- stantially equivalent employment, but that he did not receive such employment before that date. William Moore is claimed to have obtained regular and substan- tially equivalent employment on March 13, 1936. His average an- nual earnings with the respondent Mining Company were $664.50. At the time of the strike he averaged $4.50 a day and $22.50 a week: From March 13, 1936, until September 11, 1937, he worked at the Byrdhart Mining Company and its successor, in the Tri-State area,, earning a total of approximately $1,000. This job ended when the Company became insolvent. We find that William Moore has not obtained substantially equivalent employment. Jess Murray is claimed to have obtained regular and substantially equivalent employment on December 1, 1935. His average annual earnings with the respondent Mining Company were $650. At the time of the strike he was earning $3.20 a day. The respondents claim that Murray obtained employment with the Canadian Mining & De- velopment Company on December 1, 1935, and submitted in evidence. checks made by that Company to one J. Murray. Murray denied that he ever worked for the Canadian Mining & Development Com- pany at all or that he had ever received the checks. We find that Jess Murray was not employed by the Canadian Mining & Develop- ment Company. and that he has not obtained regular and substan- tially equivalent employment. Charles Newman is claimed to have obtained regular and substan- tially equivalent employment on August 4 and on October 12, 1937. His average annual earnings with the respondent Mining Company were $485.85. At the time of the strike he was earning $3.55 a day, working on a drilling machine. From August 4 until September 29, 1937, he was employed as a shoveler by the Y. W. Mining Com- pany in the Tri-State area, and earned a total of $117.04. He testi- fied that he regarded shoveling as more dangerous than machine work because of the increased dust hazard. From October 12 to November 27, 1937, Newman was employed at the Federal Mining & Smelting Company in the Tri-State area, and earned a total of $146.02. We find that Charles Newman has not obtained regular and- substantially equivalent employment. W. C. Novak is claimed to have obtained regular and substantially equivalent employment on February 28, 1936, on June 20, on Decem- ber 10, 1937, and on January 5, 1938. His average annual earnings. EAGLE-PICHER MINING & SMELTING COMPANY 857 with the respondent Mining Company were $867. At the time of the strike he-earned approximately $4.50 a day working 5 days a week: From February 28, 1936, to June 20, 1937, Novak worked for a goug- ing mine, earning $3 a day. This job ended when the mine was sub- leased. From June 20 until September 11, 1937, he worked for the sublessee of this mine. His daily wage was $4, which would have totalled $336.40, but the Company became insolvent and he received only $278.54. From December 10 until 15, 1937, he worked for the Federal Mining & Smelting Company and earned $29.15. This job ended when the mine shut down. The mine reopened on January 5, 1938, and he was reemployed. His daily wage varied, since he was working as a utility man, and up to the time of the hearing $e had earned $118. We find that W. C. Novak has not obtained regular and substantially equivalent employment. Eugene Overstreet is claimed to have obtained regular and sub- stantially equivalent employment in April 1937 and on September 5, 1937. In 1934 he earned $570, and between January 1 and May 8, 1935, he earned $234 with the respondent Mining Company. At the time of the strike he was earning $4.75 a shift, working five shifts a week. From April 5 to July 31, 1937, he was employed by the Lead & Zinc Producers Company in Missouri, earning $3.25 a day and a total of $230. This job ended when the Company curtailed its opera- tions. From September 5, 1937, until January 8, 1938, Overstreet was employed as a shoveler at the N. C. Mining Company in the Tri- State area, earning $4 a day. This job ended when the mine shut down. We find that Eugene Overstreet has not obtained regular and substantially equivalent employment. James B. Parrish is claimed to have obtained regular and substari= tially equivalent employment on. August 3, 1936, and on June 19, 1937. His average annual earnings with the respondent Mining Company were $305.40, but between January 1 and May 8, 1935, he earned $292 with the respondent Mining Company. At the time of the strike he was earning $4.50 a day and averaging $25 a week. From August 3, 1936, to February 8, 1937, he was employed at a mine in New Mexico, where he earned 48 cents an hour and a total of approximately $500. This job ended when the mine closed down. From June 19 to September 22, 1937, Parrish worked for the Ten- nessee Mining Company at Chloride, Arizona, where he earned $4.50 a day and a total of approximately $400. He testified that the dis- advantages of his second job were that he was assigned to work in a "gassy drift" and that the mine was very far from his home in the Tri-State area. We find that James B. Parrish has not obtained regular and substantially equivalent employment. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newton J. Pettitt is claimed to have obtained regular and sub- stantially equivalent employment on September 11, 1937. His aver- age annual earnings with the respondent Mining Company were $443,65. At the time of the strike he was earning $3.05 a day and $14.15 a week, working 8 hours a day and 5 days a week. From September 9 to November 29, 1937, he worked for Jake Dryer, who operated a small gouging mine. His daily wage varied between $2.50 and $3, and his total earnings were $174. This mine was a small one, operated by an individual. We find that Newton J. Pettitt has not obtained regular and substantially equivalent employment. Fred M. Pickett is claimed to have obtained regular and substan- tially equivalent employment on July 6, 1936, and on September 9, 1937. His average annual earnings with the respondent Mining Com- pany were $558.22. At the time of the strike he was earning $2.75 a day for an 8-hour day, working at the Central Mill. Since the strike he has not been employed by any mill. From July 5 until September 5, 1936, he was employed by the Empire District Electric Company, earning $20 a week. From September 9, 1937, until the time of the hearing, he was employed as a lineman by the Southwest Missouri Railroad in the Tri-State area, earning $100 a month. On this job Pickett was subject to call. Although Pickett testified that his work with the Southwest Missouri Railroad might.not be perma- nent and that he desired reinstatement, in view of the fact that he was still employed by that Company at the time of the hearing, and in view of the substantially higher wages which he was earning, we find that on September 9, 1937, Fred M. Pickett obtained regular and substantially equivalent employment, but that he did not obtain such employment before that date. Albert O. Plummer is claimed to have obtained regular and sub- stantially equivalent employment on January 10 and on March 1, 1937. ' Plummer was an extra when employed by the respondent Mining Company and prior to the strike worked only 1 week, earn- ing approximately $15. His average daily wage was $3. From January 10 until February 25, 1937, Plummer worked for the Mid- ,Continent Lead & Zinc Company in the Tri-State area, earning a daily wage of $3.86 and a total of $57.89. On March 1, 1937, Plummer was reinstated by the respondent Mining Company at a daily wage of $3.91. In view of the nature of Plummer's prior employment with respondent Mining Company, we find that on January 10, 1937, he obtained regular and substantially equivalent employment, but that he did not obtain such employment before that date. George D. Pruitt is claimed to have obtained regular and sub- stantially equivalent employment on October 14, 1936. Between EAGLE-PICHER MINING& SMELTING COMPANY 859 December 17, 1934, and May 8, 1935, he earned $295.40 with the respondent Mining Company. At the time of. the strike he was earning $3.80 a day and averaging $19.40 a week. From October 14 until December 11, 1936, Pruitt was employed by the Golden Queen Mining Company at Mojave, California, where he earned $4.25 a day and a total of $208.62. Pruitt testified that this job was as good as the one he ,had with the respondent' Mining Company and that it ended when the entire crew was laid off. While working in California, Pruitt's family remained in the Tri-State area. He was therefore compelled to live in a tent and seek his own board. We' find that George D. Pruitt has not obtained regular and sub- stantially equivalent employment. Robert M. Ransom is claimed to have obtained regular and sub- stantially equivalent employment on March 12, on July 6, 1937, and on January 17, 1938. His average annual earnings with the respond- ent Mining Company were $498.02. At the time of the strike he was earning $3 a day, working 8 hours a day and 6 days a week. From March 12 to June 25, 1937, he was employed at the Johnny Hicks Mine, but this employment ended when the mine shut down. On July 6, 1937, he began working for the Federal Mining & Smelting Com- pany and was still employed by that Company at the time of the hear- ing, having earned a total of approximately $800. He testified that he was satisfied with his work at the Federal Mining & Smelting Com- pany and that he did not desire reinstatement. We find that on July 6, 1937, Robert Al. Ransom obtained regular and substantially equivalent employment, but that he did not obtain such employment before then. James R. Rhodes is claimed to have obtained regular and sub- stantially equivalent employment on November 12, 1935, and on June 1, 1936. His average annual earnings with the respondent Mining Company were $368.30. At the time of the strike he was earning $2.80 a day. From November 12, 1935, until April 18, 1936, Rhodes was employed by the American Smelting & Refining Com- pany at Selby, California, earning $21.40 a week, or a total of $436.84. Although he left his wife and two children in the Tri-State area when he first went out to California, he subsequently brought them to that State. Rhodes left this Company because the work had been curtailed and there was a threat that the job would become only part time. From June 1 to September 1, 1936, he worked for the Columbia Steel Company at Pittsburg, California, earning $23.04 a. week. 'He then returned to the Tri-State area with his family. In view of the hardship imposed upon Rhodes by reason of geographical considerations in his employment, we find that he has not obtained regular and substantially equvalent employment. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alfred Lewis Rice is claimed to have obtained regular and substan- tially equivalent employment on March 1, 1936. His average annual earnings with the respondent Mining Company were $789. At the time of the strike he was earning $4.55 a shift and $22.75 a week. From March 1 to August 1, 1936, he worked for the Berg Iron & Metal Company in Los Angeles, California, earning $4 a day. He resumed work for the Company sometime in November and remained in its employment until February 3, 1938, earning $5 a day. He re- signed from the Berg Iron & Metal Company because he was anxious to return to the Tri-State area. In view of the geographical con- siderations involved, we find that Alfred Lewis Rice has not obtained regular and substantially equivalent employment. Clarence Rice is claimed to have obtained regular and substantially equivalent employment in October 1935. His average annual earn- ings with the respondent Mining Company were $749.50. At the time of the strike he was engaged as a tractor driver, earning $3.30 a day and working 6 days a week. In October 1935, Rice began to work for the Smitter Tree Company in Los Angeles, California, as a common laborer. He was employed as a temporary worker; his daily hours were irregular; and he worked for this Company on and off up to the time of the hearing. We find that Clarence Rice has not obtained regular and substantially equivalent employment. Harry L. Rice is claimed to have obtained regular and substan- tially equivalent employment in March, September, and November 1936. His average annual earnings with the respondent Mining Company were $865.80. At the time of the strike he was earning $4.55 for an 8-hour shift, 5 days a week. From March 26 until Sep= tember 10, 1936, Rice was employed by the Berg Metals Corporation, Los Angeles, California, where he earned 50 cents an hour. His hours of work with this Company varied from 8 to 16 a day. The work was irregular, since at times it was very slack and at other times he was forced to work two shifts a day. From September 14 to November 19, 1936, Rice was employed by Peck & Wadsworth, a tree company in Los Angeles, California, where he earned 40 cents an hour and a total of $197.70. The hours per day at this job were uncertain. From November 20, 1936, to November 5, 1937, Rice was employed by the West Construction Company at Monrovia, Califor- nia, where he earned $4.80 to $5.20 a day. The work for this Com- pany consisted of building a tunnel. It was somewhat irregular, since the practice was for Rice to work for 2 or 3 months at a time and then lay off for a month. Rice has a wife and three children. He was a foreman with the respondent Mining Company prior to the strike. We find that Harry L. Rice has not obtained regular and substantially equivalent employment. EAGLE-PICHER MINING & SMELTING COMPANY 861 Harry Elmer Ridgway is claimed to have obtained regular and substantially equivalent employment on October 14, 1936. His aver- age annual earnings with the respondent Mining Company were $468. At the time of the strike he was averaging $4 a day, working 5 days a week. On October 14, 1936, Ridgway was employed by the Mid-Continent Lead & Zinc Company in the Tri-State area. His average daily wage was $4.70 and his total earnings for that Com- pany were $1,611. He was still employed by that Company on the date on which he testified. We find that on October 14, 1936, Harry Elmer Ridgway obtained regular and substantially equivalent em- ployment, and that he did not obtain such employment before that date. Lawrence Riley is claimed to have obtained regular and substan- tially equivalent employment on April 29, 1936. 'Between July 21, 1934, and May 8, 1935, Riley earned $600.60 with the respondent Lead Company. At the time of the strike he worked 5 days a week, 8 hours a day and earned $3.20 a day. On April 29, 1936, he obtained employment with the Meeker Advertising Company in the Tri-State area and was still employed by it at the time of the hearing. With this Company Riley worked 51/4 days a week and averaged $2 a day. His total earnings were $1,453, and he testified that his work was "somewhat unsteady." In view of the disparity in wages earned and in the nature of work done, we find that Lawrence Riley has, not obtained regular and substantially equivalent employment. Joshua Roberts is claimed to have obtained regular and substan- tially equivalent employment on August 3, 1937. His average annual earnings with the respondent Lead Company were $459.90. In 1934 he earned $711, and between January 1 and May 8, 1935, he earned $322. At the time of the strike he averaged $21 a week. On August 3, 1937, he obtained employment as a truck driver and laborer at the Western Iron & Foundry Company, at. Wichita, Kansas, where his average daily wage was $3.20, and where he earned a total of $582.90. He was still employed by that Company at the time of the hearing. We find that on August 3, 1937, Joshua Roberts obtained regular and substantially equivalent employment, and that he did not obtain such employment before that date. Clifford L. Roy is claimed to have obtained regular and substan- tially equivalent employment on June 9, 1936, with the Sunshine Mining Company. At the hearing, counsel for the Board conceded that such employment was obtained and the evidence shows that such employment was regular and substantially equivalent. We find that on June 9, 1936, Clifford L. Roy obtained regular and substantially equivalent employment, and that he did not obtain such employment before that date. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ted Schasteen is claimed to- have obtained regular and substan- tially equivalent employment on September 10, 1937. His average annual earnings with the respondent Mining Company were $326.44. Between .January 1 and- May 8, 1935, he earned $134 with the respond- ent Mining Company. At the time of the strike he was earning $3.80 a day, working 5 days a week and 8 hours a . day. From Sep- tember 10 to 24, 1937, he obtained employment with the Utah Con- struction Company, Bingham Canyon, Utah. His daily wage varied between $4.30 and $5.65. This work was merely temporary and Schasteen was employed by the Company only when the .occasion demanded. In view of the actual length of his employment with this Company, and in view of geographical considerations, we find that Ted Schasteen has not obtained regular and substantially equivalent employment. Raymond Spurlock worked irregularly for the respondent Mining Company, having been employed in January 1935 for 8 days, in February for 1 clay, in April for 1 day, and in May for 1 day. His -total earnings in 1935 with the respondent Mining Company were $39.93. From September 1 to November 5, 1936, he was employed by the Evergreen Cemetery, in Los Angeles, California, being en- gaged in pick and shovel work. There he earned $3.20 a day and a total of $149. This job was temporary and. Spurlock was so told at the time he was hired. From November 6, 1936, until January 27, 1937, Spurlock was employed by the Berg Metals Corporation in Los Angeles, California, earning $3.20 a day and a total.-of $100. With this Company Spurlock worked only 1 or 2 days a week. From January 27 until April 21, 1937, Spurlock was employed by the Forest Lawn Cemetery, working 6 days a week at $3.60 a day, receiving a total of $244. This job was regular while it lasted. From July 21 until October 21, 1937, Spurlock was employed at the Atolia Mining Company, in Atolia, California, earning $4 a day and a total of $360. In view of Spurlock's irregular employment with the respondent Mining Company, we find that he obtained regular and substantially equivalent employment on September 1, 1936, and that he did not obtain such employment before that date. Lee Stanco f f is claimed to have received regular and substantially equivalent employment on November 20, 1935. His average annual earnings with the respondent Mining Company were $1,294.50. He was working as an electrician earning $4.50 a day and a weekly average of $27. He worked 7 hours a day and E days a week at the time of the strike. On November 20, 1935, he obtained employment" with the Service Electric Company at Picher, Oklahoma, where he earned 75 cents an hour, working 42 hours a week. His total earn- ings with that Company up to the time of the hearing were $3,300, EAGLE-PICHER MINING & SMELTING COMPANY 863 and he was still employed by that Company at the time he testified. We find that on November 20, 1935, Lee Stancoff obtained regular and substantially equivalent employment, and that he did not obtain such employment before that date. Fay F. Stone is claimed to have received regular and substantially equivalent employment on March 28, 1937. His average annual earnings with the respondent Mining Company were $372, but be- tween January 1 and May 8, 1935, he earned $270. At the time of the strike he worked 8 hours a day and 6 days a week and earned $3.85 a. day. From March 28 until November 2, 1937, he was em- ployed by the Inspiration Copper Company, Inspiration, Arizona. His average wages per shift at this Company were $5.50, and his total wages were $644.19. He admitted that this job was steady and that it ended when he sustained an injury. We have already held that this injury had disqualified Stone from further work with the respondents. We find that on March 28, 1937, Fay F. Stone ob- tained- regular and substantially equivalent employment, and that he did not obtain such employment before that date. Ernest Tennis is claimed to have obtained regular and substantially equivalent employment on an unspecified date. He had been em- ployed by the respondent Mining Company as a carpenter and his average annual earnings were $888.39. At the time of the strike he was earning $3.55 a shift and averaging five shifts a week. Begin- ning March 1, 1937, after having worked on W. P. A., Tennis re- sumed carpentry work, obtained various jobs. Thus, he earned $210 building a mill ; then worked for a month and a half and earned $241.50 at another construction job; thereafter obtained other car- pentry jobs. He testified that he acted as a journeyman carpenter and was working for himself at whatever jobs he could find. In view of the nature of such employment, we find that Ernest Tennis has not obtained regular and substantially equivalent employment. James C. Thompson is claimed to have obtained regular and sub- stantially equivalent employment on February 9, 1936, and on several dates thereafter. His average annual earnings with the respondent Mining Company were $159 and his work was irregular. - At the time of the strike he was earning $2.80, a day and averaging $14 a week. Beginning on February 9, 1936, Thompson was employed at the Dines Mining Company in the Tri-State area. At this job he earned $3.25 a day for an 8-hour day, working 6 days a week. This job ended when Thompson sustained an injury, which we have already held rendered him unable to work for the respondent Mining Company. We find that James C. Thompson obtained regular and substantially equivalent employment on February 9, 1936, and that he did not obtain such employment before that date. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. E. Van Kirk is claimed to have obtained regular and substan- tially equivalent employment on June 20, on July 23, 1937, and on January 3, 1938. His average annual earnings with the respondent Mining Company were $426.60. Between January 1 and May 8, 1935, he earned $199 with the respondent Mining Company and was getting $2.80 a day at the time of the strike. Between June 20 and September 11, 1937, he was employed at the Cagle Mining Company in the Tri-State area. His work for this Company was irregular and during the entire period he earned only $53.54. This job ended when the Company became insolvent and shut down. He worked for 5 days for Kansas Explorations, Inc., and earned $17.01. He claimed that he was discharged from this job, which was in the Tri-State area, because of his failure to obtain a blue card. From January 3 to February 21, 1938, Van Kirk obtained occasional employment from the Little Six Mining Company, but his total earnings were only $19.68, according to the Company, and $51, according to Van Kirk. In view of the actual length of subsequent employment obtained by him, we find that C. E. Van Kirk has not, obtained regular and sub- stantially equivalent employment. Earl Vinson is claimed to have obtained regular and substantially equivalent employment in March 1936. His average annual earnings with the respondent Lead Company were $902.16. On April 13, 1936, he obtained employment with the Red River Lumber Company, in Westwood, California, earning $4.20 a day. He left this job on November 24, 1936, because of the high altitude, which caused ill health both to himself and to his wife. His wife's resulting high blood pressure necessitated their departure, and Vinson returned to the Tri-State area. We find that Earl Vinson has not obtained regular and substantially equivalent employment. Clarence Walker is claimed to have received regular and substan- tially equivalent employment on May 15, 1936. On this date Walker obtained employment which he conceded was regular and substan- tially equivalent, and he stated that be did not desire reinstatement. We find that on May 15, 1936, Clarence Walker obtained regular and substantially equivalent employment, and that he did not obtain such employment before that date. Charles E. Ward is claimed to have obtained regular and substan-' tially equivalent employment on January 1, 1936. His average annual earnings with the respondent Mining Company .'were $737. At the time of the strike he was working at; the Central Mill and earn- ing $3.25 a day. He worked five shifts a week and 8 hours each shift. Since January 1, 1936, he had been employed at the Cantrell Garage in the Tri-State area, earning $12 a week for the first 18 months and $15 a week thereafter. He worked- 12-hour shifts and 7 days a week. l:r1GLL-PICHEII MINING & SMELTING COMPANY ' 865, We find that Charles E. Ward has not obtaiined regular and sub- stantially equivalent employment. Byron Warrnack is claimed to have obtained regular and substan- tially equivalent employment on September 24, 1936. His average annual earnings with the respondent Mining Company were $528.50. At the time of the strike he was earning $2.75 a day for 3 days a week and $3.25 a day for 2 days a week. On June 24, 1936, he obtained employment with the Braeckel Sash & Door Company in Joplin, Missouri, where he earned $14.40 a week. He was still em- ployed with this Company at the time of the hearing, but had not worked for it between January 21 and July 16, 1937. During that interim period, however, he had worked for a similar company at a similar salary. In view of the length of his said employment, we find that Byron Warmack obtained regular and substantially equivalent employment on September 24, 1936, and that he did not obtain such employment before that date. Lawrence Webster is claimed to have obtained regular and substan- tially equivalent employment on July 14, 1937. His average annual earnings with the respondent Mining Company were $460.65. Be- tween January 1 and May 8, 1935, he earned $384, working at the reesopondent Mining Company's Central Mill. He was averaging $13.75 a week, working 5 days a week, at the time of the strike. Beginning July 14, 1937, Webster was employed by the Kansas Mill- ing Company at Wichita, Kansas; as a flour trucker. He earned 471/2 cents an hour from the Kansas Milling Company, working from 6 to 8 hours per day. We find that on July 14, 1937, Lawrence Web- ster obtained regular and substantially equivalent employment, and that he did not obtain such employment before that date. Ora Williams is claimed to have obtained regular and substantially equivalent employment in January and in September 1936. His average annual earnings with the respondent Mining Company were $794.11. At the time of the strike he was earning $3.55 a day, work- ing 6 days a week. In January 1936 he obtained employment with the Dines Mining Company in the Tri-State area. He worked for this Company for approximately 3 months and left because he was required to obtain a blue -card and because he was working on a night shift which was discontinued. While working for the Dines Mining Company, Williams earned $3.25 a day, working 7 days a week. In September 1936, Williams opened his own cafe. During the entire period he obtained only about $30 net profit from his cafe. He worked at the cafe from 6 a.m. to 10 p.m. each day. At the time of the hearing he was attempting to sell his cafe, and he desired rein- statement with the respondent Mining Company. We find that Ora Williams has not obtained regular and substantially equivalent employment. 866 DECISIONS OF NATIONAL LABOR RELATIONS 130ARD Raymond Williams is claimed to have obtained regular and sub- stantially equivalent employment in February 1936. His total earnings from the respondent Mining Company in 1933, 1934, and 1935 were only $321.72. However, between January 1 and May 8, 1935, he earned $250 with the respondent Mining Company. At the time of the strike he was earning $2.80 a day. From February 5, 1936, to October 9, 1937, Williams worked for the Kansas State Telephone Company as a repair lineman, earning $2.50 a day and receiving a total of $1,350. In view of the irregular character of Williams' employment with the respondent Mining Company, we hold that on February 9, 1936, Raymond Williams obtained regular and substantially equivalent employment, and that he did not obtain such employment before that date. Elmer Lonnie Wood is claimed to have obtained regular and sub- stantially equivalent employment on March 16, in June 1936, and in April 1937. His average annual earnings with the respondent Mining Company were $596. At the time of the strike he was earning $2.75 a shift. From March 16 until May 25, 1936, he was employed by the Britt Milling Company in the Tri-State area, and earned a total of $172.50 or $2.50 a day. He quit this job when he refused to obtain a blue card. From June 15 until December 15, 1936, he was employed by the Ore Development Company in the Tri-State area, but actually worked only 90 days during that entire period, earning $3 a day. From April 9 to July 31, 1937, Wood was employed by the American Zinc Company, earning $4.25 a day. He left this job "to obtain a better job" with the Sunflower Mining Company, where he earned $4.75 a day. He worked for this latter Company until August 9, when he was operated upon. His illness thereafter pre- vented him from working. In view of these circumstances, we find that on April 9, 1937, Elmer Lonnie Wood obtained regular and substantially equivalent employment, and that he did not obtain such employment before that date. T. D. Wood is claimed to have obtained regular and substantially equivalent employment on December 16, 1935. His average annual earnings with the respondent Mining, Company were $382.30. At the time of the strike he was earning $3.25 a day. On December 16, 1935, he obtained employment with the Boriana Mining Company, at Yucca, Arizona, where he worked as an extra for 8 days, earning $4.50 a day. Thereafter he worked for that Company until January 24, 1936, as a roustabout, doing odd jobs. This ended when he was laid off because of curtailment of operations. In view of the actual length of this employment, its varying nature, and its remoteness from the Tri-State area, we find that T. D. Wood has not obtained regular and substantially equivalent employment. EAGLE-PICHER MINING & SMELTING COMPANY 867 Glenn Woods is claimed to have obtained regular and substantially equivalent employment on February 26, 1937. His average annual earnings with the respondent Mining Company were $446.28. At the time of the strike he was earning $3.55 a day, working 5 days a week. From February 26 until April 9, 1937, he was employed by the Chero- kee Mine in the Tri-State area , earning $3 .50 or $4 a day. His total earnings with this Company were $130.38. The Cherokee Mine, in answer to the respondents ' questionnaire, assigned as Woods' reason for leaving the fact that the crew was cut. Woods testified that he. was discharged because he had failed to obtain a blue card . At this job he worked 6 and 7 days a week. In view of the actual length of his employment with this Company , we find that Glenn Woods has not obtained regular and substantially equivalent employment. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Union of Mine, Mill & Smelter Workers, Locals Nos.. 15, 1.7, 107, 108 , and 111 ; Tri-State Mine, Mill & Smelter Work- ers' Union ; and the Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers, . are labor organizations within the meaning of Section 2 (5) of the Act. 2. The strike begun-on May 8, 1935, and continuing thereafter, was a current labor dispute on July 5, 1935 , within the meaning of Sec- tions 2 (3) and (9) of the Act. 3. Persons who struck on May 8, 1935, and continued on strike on- and after July 5, 1935 , were employees of the respondents on July 5, 1935, within the meaning of Section 2 (3) of the Act. 4. John R. Sheppard is an employee within the meaning of Sec- tion 2 (3) of the Act. 5. By forming and establishing and thereafter assisting and sup- porting financially and otherwise, the Tri-State Union, and by man- aging, controlling and otherwise participating in the administration of that Union, the respondents, and each of them, have interfered with, restrained, and coerced their employees in the exercise of rights guaranteed by Section 7 of the Act and have thereby engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. 6. By failing at any time to disassociate themselves and disestab- lish the Tri-State Union ; by participating through their agents and supervisory employees , in the metamorphosis of the Tri-State Union into the Blue Card Union ; by failing to disassociate themselves from the Blue Card Union; and by participating in the administration of and supporting the Blue Card Union, the respondents, and each of them, have interfered with, restrained, and coerced their employees 868 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD in the exercise of the rights guaranteed in Sectiton 7 of the Act anc' have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 7. By employing, exercising , authorizing, and encouraging vio- lence against the members and property of the International Union with intent to frustrate and nullify any efforts on the part of their employees to organize, the respondents , and each of them, have inter- fered with, restrained , and coerced their employees in their exercise of the rights guaranteed by Section 7 of the Act and have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 8. By otherwise interfering with, restraining , and coercing- their employees in the exercise of the rights - guaranteed by Section 7 of the Act, the respondents, and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 9. By discriminating in regard to the terms and conditions of employment of their employees both at work and on strike , thereby encouraging membership in the Tri-State Union and the Blue Card Union and discouraging membership in the International Union, the respondents , and each of them, have engaged in and are engag- ing in unfair labor practices , within the meaning of Section 8 (3) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 11. The respondents have not discriminated in regard to the hire and tenure of employment of the persons named in Appendix G within the meaning of Section 8 (3) of the Act. 12. The respondents have not refused to bargain collectively, within the meaning of Section 8 (5) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Eagle-Picher Lead Company, and the respondent, Eagle- Picher Mining & Smelting Company, and their officers,. agents, successors, and assigns, shall jointly and severally: 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of the Tri-State Mine, Mill & Smelter Workers Union, or the Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers, or the formation or administration of any other labor 'organization EAGLE-PICHER MINING & SMELTING COMPANY 869 of their employees, or contributing financial or other support to the Tri-State Union of Mine , Mill & Smelter Workers Union, or to the Blue Card Union of Zinc & Lead, Mine , Mill and Smelter Workers, or to any other labor organization of their employees; (b) Discouraging membership in International Union of Mine, Mill & Smelter Workers Locals Nos . 15, 17, 107, 108, and 111, or any other labor organization of their employees , or encouraging membership in Tri-State Mine, Mill & Smelter Workers Union, or in the Blue Card Union of Zinc & Lead,' Mine, Mill and Smelter Workers, by discharging or refusing to reinstate any of their em- ployees or in any other manner discriminating in regard to their hire and tenure of employment or any term or condition of their employment because of membership or activity in connection with any such labor organization; (c) .Urging, persuading, warning, or coercing their employees to join Tri-State Mine, Mill & Smelter Workers Union, or the Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers, or any other labor organization of their employees , or threatening them with discharge or with non -reinstatement if they fail to join any such labor organization; • (d) Urging, persuading, warning, or coercing their employees to refrain from joining International Union of Mine , Mill & Smelter Workers , Locals Nos. 15, 17, 107 , 108, and 111, or any other' labor organization of their employees, or threatening them with discharge or with non-reinstatement if they join any such labor organization; (e) Permitting organizers and collectors of dues for Tri-State Mine, Mill & Smelter. Workers Union or the Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers, or any other labor organization to engage in activities among their employees in behalf of such labor organizations during working hours or on the respond- ents' property, unless similar privileges are granted to International Union of Mine, Mill & Smelter Workers Locals Nos . 15, 17, 107, 108, and 111, and all other labor organizations of their employees; (f) Giving effect to any written or oral contract or agreement executed with the Tri-State Mine, Mill & Smelter Workers Union; . (g) Recognizing or in any manner dealing with the Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers, or any other labor organization of their employees , as exclusive representative of their employees in an appropriate unit, unless and until such labor organization is certified by the Board as such exclusive representative; (h) Recognizing or in any manner dealing with Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers, as representative of any of their employees for the purpose of dealing with the respond- ents concerning grievances , labor disputes, wages, rates of pay, hours 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment, or other conditions of employment, unless similar recognition is granted to International Union of Mine, Mill & Smelter Workers, or unless and until said Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers is certified by the Board as ex- clusive representative of their employees in an appropriate unit; (i) Instigating, aiding, encouraging, or authorizing their agents or employees to use violence against the members or property of Inter- national Union of Mine, Mill & Smelter Workers Locals'Nos. 15, 17, '107, 108, and 111, or of any other labor organization of their em- ployees, for the purpose of discouraging membership therein; (j) In any other manner interfering with, restraining, or coercing their employees in their exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own 'choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. 2. The respondent, Eagle-Picher Lead Company, and its officers, agents, successors, and assigns, shall take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to John R. Sheppard and Timothy Rayon immediate and full reinstatement to their former positions without prejudice to their former rights and privileges; (b) Make whole John R. Sheppard and Timothy Rayon for any loss of pay they may have suffered by reason of their discharges, by payment to each of them of a sum equal to that which each would have earned as wages from the date of the respondent's discrimina- tion against them to the date of such offer of reinstatement, less their net earnings 194 during such period, deducting, however, from the amount otherwise due to him monies received by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects and paying over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, munici- pal, or other government or governments which supplied the funds for such work-relief projects and excluding, in the case of Sheppard, the period from August 31, 1938, to the date of this Order in the computation of the sum he would normally have earned from the respondent; (c) Offer to the employees named in Appendix C immediate and full reinstatement to, and the person named in Appendix E im- mediate employment in, their former or substantially equivalent posi- tions, or if no such positions be available then to positions for which they may be qualified, without prejudice to their seniority and other rights and privileges. All persons, or such number as may be neces- 704 See footnote 178 above. EAGLE-PICHER MINING & SMELTING COMPANY 871 sary, hired since July 5, 1935, and not in its employ either during the week including May 8, 1935, or during the period between May 8, 1935, and July 5, 1935, shall be dismissed by the respondent to pro- vide such employment for the persons above ordered to be offered and who shall accept reinstatement or employment. If, despite and after such dismissal, there is not sufficient employment immediately available for the persons above ordered to be offered and who shall accept reinstatement or employment, all available, positions, if any, shall be distributed among such persons, without discrimination against any of them because of their union affiliation or activities, following such a system of employment as has been heretofore ap- plied by the respondent in the conduct of its business, or some other non-discriminatory system. Those persons remaining after such dis- tribution for whom no employment is immediately available and those who in accordance with what has been set forth above are rein- stated or employed not in their former or substantially equivalent positions, but to positions for which they are qualified, shall be placed by the respondent on a preferential list; with priority determined among them in accordance with such system of employment, and thereafter, in accordance with said list, shall be offered reinstatement or employment by the respondent in their former or substantially equivalent positions, as such employment becomes available and before other persons are hired for such work; (d) Make whole all persons listed in Appendix A in the manner set forth above in the section entitled "The Remedy," with the limi- tations in periods as set forth in parentheses after the names listed in Appendix A. In all cases, however, there shall be deducted from the amount of monies otherwise due each of said persons ordered to be made whole, monies received by him during the period or periods for which back pay is ordered on account of work performed upon Federal, State, county, municipal, or other work-relief projects, and the respondent shall pay over the amount, so deducted, to the appro- priate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (e) Withhold recognition from the Blue ' Card Union of Zinc & Lead, Mine, Mill and Smelter Workers, or any other labor organiza- tion of its employees, as exclusive representative of its employees in an appropriate unit, unless and until such labor organization is certified.by the Board as such exclusive representative; (f) Unless and until said Blue Card Union is certified by the Board as such exclusive representative, withhold recognition from said Blue Card Union as representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, 247381-40-vol. 16--56 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wages; rates of pay, hours of employment, or other conditions of .employment, unless similar recognition is granted to International Union of Mine, Mill & Smelter Workers; (g) Immediately post notices in conspicuous places in and around its smelter, and maintain such notices for a period of ninety (90) consecutive days, stating that membership in Tri-State Mine, Mill & Smelter Workers Union, or the Blue Card Union of Zinc & Lead, Mine, 'Mill and Smelter Workers, or in any other labor organization of its employees, or nonmembership in International Union of Mine, Mill & Smelter Workers, is not required to obtain or retain employ- ment with the respondent, and also stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), (c), (d), (e), _(f), (g), (h),. (i), and (j), and that it will take the affirmative action set forth in 2 (a), (b), (c), (d), (e), and (f) of this Order; and (h) Notify the Regional Director for the Seventeenth Region in writing within twenty (20) days from the date of this Order what steps the respondent has taken to comply herewith. 3. The respondent Eagle-Picher Mining and Smelting Company, and its officers, agents, successors, and assigns, shall take the fol- lowing affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to the employees named in Appendix D immediate and full reinstatement to, and to the persons named in Appendix F im- mediate employment in, their former or substantially equivalent positions, or if 'no such positions be available then to positions for :which they may be qualified, without prejudice to their seniority and other rights and privileges. All persons, or such number as may be necessary, hired since July 5, 1935, and not in its employ either during the week including May 8, 1935, or during -the period between May 8, 1935, and July 5, 1935, shall be dismissed by the respondent to pro- vide such employment for the persons above ordered to be offered and who'shall accept reinstatement or employment. If, despite and after such dismissal, there is not sufficient employment immediately available for the persons above ordered to be offered and Who shall accept reinstatement or employment, all available positions, if any, shall be distributed among such persons, without discrimination against any of them because of their union affiliation or activities, following such a system of employment as has been heretofore ap- plied by the respondent in the conduct of its business, or some other non-discriminatory system. Those persons remaining after such dis- tribution for whom no employment is immediately available and those who in accordance with what has been set forth above are reinstated or employed not in their former or substantially equivalent EAGLE-PICHER MINING & SMELTING COMPANY 873 positions, but to positions for which they are qualified, shall be placed by the respondent on a preferential list, with priority de- termined among them in accordance with such system of employment, and thereafter, in accordance with said list shall be offered reinstate- ment or employment by the respondent in their former or substan- tially equivalent positions, as such employment becomes available and before other persons are hired for such work; (b) Make whole all persons listed in Appendix B in the manner set forth in the section entitled "The Remedy," with the limitations in periods as set forth in parentheses after. the names listed in Appendix B. In the case of W. E. Honeywell, the sum due shall be paid over to Hazel Honeywell, his duly appointed administratrix. In all cases, however, there shall be deducted from the amount of monies other- wise due each of said persons ordered to be made whole, monies received by him during,the period- or periods for which back pay is ordered on account of work performed upon Federal, State, county, municipal, or other work-relief projects, and the respondent shall pay over the amount, so deducted, to the appropriate fiscal agency of the Federal State, county, municipal, or other government or - govern- ments which supplied the funds for said work-relief projects; (c) Withhold recognition from the Blue Card Union of Zinc & Lead, Mine, Mill and Smelter Workers, or any other labor organiza- tion of its employees, as exclusive representative of its employees in an appropriate unit, unless and until such labor organization is certified by the Board as such exclusive representative; (d) Unless and until said Blue Card Union is certified by the Board as such exclusive representative, withhold recognition from said Blue Card Union as representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless similar recognition is granted to International Union of Mine, Mill & Smelter Workers; (e) Immediately post notices in conspicuous places in and around its mines, mills, and smelters, and maintain such notices for a period of ninety (90) consecutive days, stating that membership in Tri- State Mine, Mill & Smelter Workers Union, or the Blue Card Union of Zinc & Lead, - Mine, Mill and Smelter Workers, or in any other labor organization of its employees, or non-membership in Interna- tional Union of Mine, Mill & Smelter Workers, is not required to obtain or retain employment with the respondent, and also stating that the respondent will cease and desist in the manner set forth in 1 (a.),• (b)-, (c):,. (d), (e), (f), (g), (h), (i), and (j), and that it will take the affirmative action set'forth in 3 (a), (b), (c),.and (d) of this Order; and 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Notify the Regional Director for the Seventeenth Region in writing within twenty (20) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORI)ERED that the allegations of the complaint that the respondents refused to bargain collectively, within the mean- ing of Section 8 (5) of the Act be, and the same hereby are, dismissed. AND IT IS FURTHER ORDERED that the allegations of the complaint with respect to the persons named and listed in Appendix G be, and the same hereby are, dismissed. APPENDIX A Persons discriminated against by Lead Company and ordered to be awarded back pay except for periods indicated. W. J. Barrett Irvin Cannon James Curry a Claude Dalton (8-31-38 to Order) William Davidson Lester Davis Edward W. Doty Clarence Fanning Lewis G. Fears Lawrence Fleming J. I. Gosnall b Otto Gray William I. Guinn e Wesley Hamby Curtis Harbaugh Albert Hardesty J. R. Hayes d Lee Healy Ed Huddleston James A. McDonald Orley F. Martin (on and after 8-10-36) Arthur Mays John Mays H. S. (Herb) Mead Chauncey W. Mitchell Henry O. Olson Charles A. Peterson Howard Rhyne Lawrence Riley Joshua Roberts Homer Rogers Walter Simpson W. W. Staats S John W. Smith Arch Underhill I. E. Vaughn Earl Vinson W. N. Vinson Andrew Wade Scott Yeakey W. B. Yingst h Cecil Yocum (on and after approximately 8-1-36) a Name appears in complaint as Crarry. b Name appears in complaint as T. I . Goswell. Name appears in complaint as W. F. Quinn. d Name appears in the complaint as J. R. Hays. e Name appears in complaint as w. K. Mitchell. t Name appears in complaint as Joyce (Josh ) Roberts and John (Josh) Roberts. g Name appears in complaint as warren W. Slatts. b Name appears in complaint as W. B. Yengst. EAGLE-PICHER MINING & SMELTING COMPANY APPENDIX B 875 Persons discriminated against by Mining Company and ordered to be awarded back pay except for periods indicated in parentheses. W. H. Allen (6-1-37 to 3-8-38) W. M. Atkinson Joe H. Ballard Ernest D. Bankhead John H. Bankhead (8-31-38 to Order) John A. Basnett a (8-31-38 to Order) Theodore R. Bennett (on and after 4-15-37) Harry C. Beyer b (8--31-38 to Order) A. G. Black Thomas Black (8-31-38 to Order) Harry Blasor Henry W. Bloom Fred Bogle, Jr. Fred Bogle, Sr. James Bogle Mark Bond ° (8-31-38 to Order) Roy Boyd (8-31-38 to Order) Ulyes Bradbury Nick Bratz (8-31-38 to Order) H. E. Bridges (on and after 1-29-37) P. M. Brooks (8-31-38 to Order) E. E. Browning (8-31-38 to Or- der) A. F. Bruce (8-31-38 to Order) James O. Bryant (8-31-38 to Order) William Bryant Excell Bullard Archie Bunch (8-31-38 to Order) R. F. Burgett William H. Cagle d (8-31-38 to Order) Joe H. Cagle Raymond Cagle Grant Cavin George W. Order) Clark (8-31-38 to Guss Cooper (8-31-38 to Order) Roy Cottongin Order) Carl Creason D. G. Creason Ira Danel (8-31-38 to (8-31-38 to Order) Raymond Darrel e Calvin Davis (8-31-38 Melgar Densman to Order) Lewis DeWitt (8-31-38 to Order) Clyde O. Dimmitt c Clifford Doak (8-31-38 to Order) J. C. Dodson (8-.31-38 to Order) J. C. Emerson Everett J. Faries Order) M. D. Ferguson Order) Martin Forrest (8-31-38 (8-31-38 to to Fred Foster (12-15-37 to 2-10- 38) Henry L. Freeman 7-6-37) John E. Freeman Order) W. S. Fulkerson Order) Kenneth Gary Name appears in complaint as John A. Barnett. b Name appears in complaint as H. C. Beyers. Name appears as W. E. Bond. d Name appears in complaint as Henry Cagle. e Name appears in complaint as Raymond Danvels. r Name appears in complaint as Claude 0 . Dimmitt. (on and after (8-31-38 (8-31-38 to to 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Luke A. Griffitt g1 (on and after 10-20-37) Henry Hamilton (8-31-38 to Order) Ralph Haner g Mack Hanks Cecil Glenn Harreld " Alfred Hatfield Roy Hatfield G. Marion Headley (on and after 6-1-36) Ralph Henderson Dan Hensley' James Hensley Vivian C. Hiatt (8-31-38 to Order) Bud (H. M.) Hilburn Orvil Hobson k Paul Hollingsworth (8-31-38 to Order) W. E. Honeywell' (on and after 12-1-36) Cleve Horner Kenneth Howe J. D. Hughes (on and after 11- 14-35) Harry F. James Cecil Jeffries m Roscoe Johnson J. L. Jones Recie F. Jones (8-31-38 to Order) Burton V. (Ben) Kearney (8-31- 38 to Order) Albert Kinkade Earl Kohl C. W. Lake Alson (Allison) Lamb Darrell Largent (on and after 8- 1-37) William Charles Laturner ° (8-31- 38 to Order) Roger Lindsay P W. E. Livingston John McCormick (8-31-38 to Or- der) Charles McIntire q Fred McIntire q J. F. McIntire q Milton McIntire q Ray McIntire r (8-31-38 to Order) Kenneth McNutt Earl Martin (8-31-38 to Order) Elmer E. Mast 9 Ray Mayfield Everett Messer George Messer John B. Millner William Moore H. M. Murphy Jess Murray Richard Murray (8-31-38 to Or- der) C. H. (Charles) Newman gl Name appears in complaint as Luke Griffith. g Name appears In complaint as Ralph Haver. h Name appears in complaint as C. G. Harold. Name appears in complaint as Dan Havsley. Name appears in complaint as H. It. Hensley. k Name appears in complaint as Orval Hohsen. Payment to be made to Hazel Honeywell as administratrix as stated in Order. m Name appears in complaint as Cecil Jeffreys. Name appears in complaint as A. L. Kenhade. o Name appears in complaint as Wm. E. La Turner. P Name appears in complaint as Arthur B. Lindsay. ° The last names of these men appear in complaint as MacIntyre. r Name appears in complaint as Ray McEntire. 6 Name appears in complaint as Elmer E. Mart. EAGLE-PICHER MINING & SMELTING COMPANY W. C. Novak t (8-31-38 to Order) Eugene Overstreet (8-31-38 to Order) Walter Overstreet (8-31-38 to Order) Walter Parmer J. B. Parrish Newton J. Pettit u (8-31--38 to Or- der) Fred Pickett Fred Pliler v Albert O. Plummer °1 (on and after 1-10-37) George Dewey Pruitt- Arthur Puckett (8-31-38 to Or- der) Wesley Qualls (8-31-38 to Order) Robert Ransom (on and after 7- 6-37) Charles T. Rhoades x (8-31-38 to Order) James R. Rhodes Y Lewis Alfred Rice z (8-31-38 to Order) Clarence Rice (8-31-38 to Order) Harry Rice Harry E. Ridgway Clifford Roy Richard Sawyer Ted Schasteen (8-31-38 to Order) Mance F. Selle Ross L. Shaw William F. Sowder as (8-31-38 to Order) Virgil Spiva (8-31-38 to Order) 877 Raymond Spurlock Lee Stancoff Fay Stone (on and after 3-28-37) Willard (Win.) Stoney Samuel Sweet Ernest Tennis bb (8-5-35 to 4-1- 37) James C. Thompson (on and after 2-9-36) Roy L. Thornton 0c W. H. Todhunter Elmo A. Treece dd (8-31-38 to Or- der) M. J. Vanderpool ee Charles E. Van Kirk (8-31-38 to Order) Clarence Walker (on and after 5-15-36) George Wallace Charles Ward Byron Warmack John G. Warren (8-31-38 to Or- der) Harlan Waughtal ft (8-31-38 to Order William Webb (8-31-38 to Or- der) L. D. Webster P. L. White (8-31-38 to Order) Dorsey Whitlow (8-31-38 to Or- der) Floyd Williams (8-31-38 to Or- der) Ora Williams (8-31-38 to Order) Raymond Williams I Name appears in complaint as w. C. Novah. u Name appears in complaint as M. J. Petiett. v Name appears in complaint as Fred Plyler. vi Name appears in complaint as A. L. Plummer. Name appears in complaint as Dewey Pruitt. Name appears in complaint as Chas. T. Rhodes. Y Name appears in complaint as Ray Rhodes. I Name appears in complaint as Alfred Rice. as Name appears in complaint as w. F. Souder. bb Name appears in complaint as Earl (Earnie ) Tennis. CC Name appears in complaint as Roy F. Thornton. dd Name appears in complaint as C. A. Treece. ee Name appears in complaint as J. M. Vanderpool. rr Name appears in complaint as Harlan waughtah. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. E. Wilson (8-31-38 to Order) Howard B. Wimberley Todd Wisner Elmer Wood (from 8-9-37 to un- specified date) T. Dan Wood Glenn Woods Otto Woods William Young ( 8-31-38 to Or- der) APPENDIX C Persons to be reinstated by Lead Company. W. J. Barrett Irvin Cannon James Curry Claude Dalton William Davidson Lester Davis Edward W. Doty Clarence Fanning Lewis G. Fears Lawrence Fleming J. I. Gosnall Otto Gray William I. Guinn Wesley Hamby Curtis Harbaugh Albert Hardesty J. R. Hayes Lee Healy Ed Huddleston James A. McDonald Arthur Mays John Mays H. S. (Herb) Mead Chauncey Mitchell Henry O. Olson Charles A. Peterson Timothy (Jim) Rayon Howard Rhyne Lawrence Riley Homer Rogers Walter Simpson W. W. Staats John W. Smith Arch Underhill I. E. Vaughn Earl Vinson W. M. Vinson Andrew Wade Scott Yeakey W. B. Yingst APPENDIX D Persons to be reinstated by Mining Company. W. H. Allen W. M. Atkinson Joe H. Ballard Ernest D. Bankhead John H. Bankhead John A. Basnett Harry C. Beyer A. G. Black Thomas Black Harry Blasor Henry W. Bloom Fred Bogle, Sr. James Bogle Mark Bond Roy Boyd Ulyes Bradbury Nick Bratz P. M. Brooks E. E. Browning A. F. Bruce James O. Bryant William Bryant Excell Bullard Archie Bunch EAGLE-PICHER MINING & SMELTING COMPANY 879 William H. Cagle Joe H. Cagle Raymond Cagle Grant Cavin George W. Clark Guss Cooper Roy Cottongin Carl Creason D. G. Creason Ira Danel Raymond Danel Calvin Davis Melgar Densman Lewis De Witt Clyde Dimmitt Clifford Doak J. C. Dodson Everett J. Faires M. D. Ferguson Martin Forrest John E. Freeman W. S. Fulkerson Kenneth Gary Henry Hamilton Ralph Haner Mack Hanks Cecil Glenn Harreld Roy Hatfield Ralph Henderson Dan Hensley Vivian C. Hiatt Bud (H. M.) Hilburn Orvil Hobson Paul Hollingsworth Cleve Horner Kenneth Howe Harry F. James Cecil Jeffries Roscoe Johnson J. L. Jones Recie F. Jones Burton V. (Ben) Kearney Albert Kinkade Earl Kohl C. W. Lake Alson (Allison) Lamb William Charles LaTurner Roger Lindsay W. E. Livingston John McCormick Charles McIntire Fred McIntire J. F. McIntire Milton McIntire Ray McIntire Earl Martin Elmer E. Mast Ray Mayfield Everett Messer John B.. Millner William Moore H. M. Murphy Jess Murray Richard Murray C. H. (Charles) Newman W. C. Novak Eugene Overstreet Walter Overstreet Walter Parmer J. B. Parrish Newton J. Pettit Fred Pliler George Dewey Pruitt Arthur Puckett Wesley Qualls Charles T. Rhoades James R. Rhodes Lewis Alfred Rice Clarence Rice Harry Rice Richard Sawyer Ted Schasteen Mance F. Selle Ross L. Shaw William F. Sowder Virgil Spiva William (Wm.) Stoney Samuel Sweet 880 DECISIONS OF NATIONAL Ernest Tennis Roy L. Thornton W. H. Todhunter Elmo A. Treece M. J. Vanderpool Charles E. VanKirk Charles Ward George Wallace John G. Warren Harlan Waughtal William Webb P. L. White Dorsey Whitlow Floyd Williams Ora Williams J. E. Wilson Howard B. Wimberley Todd Wisner T. Dan Wood Glenn Woods Lawrence Woods Otto Woods William Young APPENDIX E Persons to be offered employment by the Lead Company. Joshua Roberts APPENDIX F Persons to be offered employment by the Mining Company. Fred Bogle, Jr. R. F. Burgett J. C. Emerson Fred Foster Alfred Hatfield James Hensley Kenneth McNutt George Messer Fred Pickett Harry E. Ridgway Clifford Roy Raymond Spurlock Lee Stancoff Fay Stone Byron Warmack L. D. Webster Raymond Williams APPENDIX G Persons as to whom complaint is dismissed. 1. Those whose names Ray Allbright Henry Bankhead August Bradshaw Claude Brooks H. A. Carlisle Jess Danel Herman Dean Paul Dudley (Duley) P. G. Eden LABOR RELATIONS BOARD were withdrawn Harold Hatfield J. W. Howell Winth Jervis A. L. Johnson Clayton Johnson Hubert Johnson Steve Johnstone Charley King Lester Krokroshia EAGLE-PICHER MINING Rc SMELTING COMPANY 881 George L. Lake Ralph L. Lumbley Dan Henry Martin Joseph E. Martin Horace G. Murphy Dellos Neeley M. O'Dell J. W. Overstreet J. B. Schneiders Harry Shallenberger Will Shears Orville Stever C. W. West Oscar Williams 2. Those found not to have L. B. Anderson Otto Anderson Elmer Belk Leroy Berry Ed Blackburn Oven Blinzler Earnest K. Bogle a Roy Bray Clabe Brown b Loman Brown Elmer Dean Clay Dodd Pleas Duncan Everett Hall O. R. Hiatt W. C. Jewell J. D. (J. 0.) Jones Manuel F. Jones d 3. Those who Laurel Ashworth George M. Bankhead Earl Bartlett Lee Bennett Ben F. Black Thomas Bogle Basil Bradshaw W. W. Brooks W. T. Brown Don Cassell been discriminated against Jess Kitch Carl. (Wm. C.) LaTurner Clarence Loflin e Joseph Mallatt Wm. T. Mathiews Charles Owens Luke A. Patrick Joe Reece Tom Reece Albert Rigg James M. Roper C. E. Schroeder Elmer A. Tinkler Floyd Turbett William Van Treece James Webb G. W. White Floyd Woolever did not testily Jim Chatman William Clark Raymond Connor L. W. Countryman Crabtree (?) Claib Crook G. C. Dale John Deverell John P. Ditson P. W. Duncan " Name appears in complaint as Ernie Bogie. b Name appears in complaint as Cleve Brown. c Name appears in complaint as Lowman Brown. a Name appears in complaint as M. S . Jones. f Name appears in the complaint as Clarence Lockland (I.oughlan). = Name appears in complaint as W. N. Vantrece. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. O. Emerson Louis Luton J. W. Fitzgerald Lafe McAlister Harvey Freeman Floyd Mallatt Thomas Freeman C. Martin Walter Ginn John Mitchell James A. Gorman E. J. Mooney W. L. Hannon E. R. Moore Ralph Harlow Joe Nowlin Loyd Henderson Thomas Rhodes B. E. Hiatt L. D. Rice W. F. Hobbs Claude W. Rowland Z. T. Hobbs Burl Russell Jack Hodson Otis Scott Joe Hodson Clarence Skaggs R. D. Hollingsworth R. B. Smith Ernest C. Hopkins W. U. Spencer Jesse Horton Clarence Stevenson Walter C. Howard Bill Taylor Dan Huest E. W. Thomure Charles C. Jones Clarence Thomas Claude Jones Truman Thomas F. L. Jones William A. Thompson Frank Jones Floyd C. Titus Ray Jones T. A. Treete Ernest Kelly Tom Walker Jack LaBelle (Labaugh) John Warner Richard Lawyer Arthur Webb Ernest L. Lewis Fred C. Winner George W. Lewis H. E. Wisdom Jess E. Lewis Davis Wortham Samuel L. Lipps Ira Young Hiram Little MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.